author: WIEAND, Judge:

text:
    539 A.2d 399
    COMMONWEALTH of Pennsylvania v. Manuel MARTINEZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 26, 1987.
    Filed March 16, 1988.

      Manuel Martinez, in propria persona.
    Thomas W. Minett, Assistant District Attorney, Ellwood City, for Com., appellee.
    Before WIEAND, McEWEN and HOFFMAN, JJ.
   WIEAND, Judge:

This is an appeal from an order dismissing a P.C.H.A. petition after hearing. Although appellant was represented by counsel during the P.C.H.A. hearing, his brief in this Court has been filed pro se. He contends that he is entitled to be re-sentenced or, in the alternative, that he should be allowed to withdraw his plea of guilty. We hold that he is entitled to be re-sentenced and remand for that purpose.

Manuel Martinez was charged with aggravated assault and attempted rape as a result of an incident occurring on May 26, 1985, in which Amanda Sager was struck repeatedly, and thrown down a forty-foot high embankment. On December 12, 1985, while represented by counsel, Martinez entered a negotiated plea of guilty to aggravated assault. As part of the plea agreement, Martinez withdrew a pending omnibus pre-trial motion in which he had asked the court to suppress an inculpatory statement made while he was in police custody. In exchange, the Commonwealth agreed to nol pros the charge of attempted rape and make no recommendation as to the sentence to be imposed for aggravated assault. Subsequent testimony disclosed that it had been Martinez’s intent to seek the mercy of the court. On February 5, 1986, Martinez was sentenced to prison for the maximum term of not less than five years nor more than ten years.

Martinez did not thereafter seek to withdraw his plea of guilty. However, he did file a motion requesting the court to reconsider the sentence. Contained therein, inter alia, was an averment that the Commonwealth had breached the terms of its agreement to make no recommendation as to the sentence to be imposed. The motion to reconsider the sentence was denied on February 14, 1986, and Martinez filed a direct appeal from the judgment of sentence. When his counsel failed to file a brief, however, the appeal was dismissed by a per curiam order which recited that it was “without prejudice to Appellant’s rights under the Post Conviction Hearing Act.”

A P.C.H.A. petition was filed on September 19, 1986; counsel was appointed; and an evidentiary hearing was held on January 13, 1987. The petition was thereafter taken under advisement by the court and denied on June 25,1987. This appeal followed. Martinez argues (1) that his plea of guilty was involuntary because it was induced by a confession which had been obtained unlawfully; (2) that guilty plea counsel was ineffective because he had promised Martinez that if he pleaded guilty he would be sentenced to prison for not less than three years nor more than six years; and (3) that the District Attorney had violated the agreement to make no recommendation as to sentence when he told the court that persons interested in the case were requesting the court to impose the maximum sentence.

After a defendant has entered a plea of guilty the only cognizable issues in a P.C.H.A. proceeding are the validity of the plea of guilty and the legality of the sentence. Commonwealth v. Casner, 315 Pa.Super. 12, 16, 461 A.2d 324, 325 (1983). Pa.R.Crim.P. 321(a) requires that a motion challenging the validity of a guilty plea shall be filed within ten (10) days after imposition of sentence. In the absence of extraordinary circumstances, the failure to file a timely motion challenging the validity of the guilty plea will constitute a waiver of issues which might have been raised therein and will bar consideration of the validity of the plea in collateral proceedings. Commonwealth v. Scott, 318 Pa.Super. 526, 528, 465 A.2d 678, 679 (1983); Commonwealth v. Knox, 304 Pa.Super. 368, 372, 450 A.2d 725, 727 (1982); Commonwealth v. McGarry, 280 Pa.Super. 527, 529-530 n. 2, 421 A.2d 847, 848 n. 2 (1980). See also: Commonwealth v. Miller, 495 Pa. 177, 179, 433 A.2d 1, 2 (1981); Commonwealth v. Harris, 492 Pa. 381, 386 n. 2, 424 A.2d 1242, 1244 n. 2 (1981). In the instant case, appellant did not file a written motion challenging the validity of his guilty plea within ten (10) days after imposition of sentence. Moreover, he has not shown any extraordinary circumstances which would have prevented the failure to file a post-sentencing motion from having the effect of waiver.

Following the imposition of sentence, the trial court advised appellant of his rights to file a motion to modify the sentence and/or to challenge the validity of his guilty plea. The court told him that the right would be lost if he did not act within ten (10) days. With respect to a motion to challenge the guilty plea, the court said:

You also have the right to file the following motions which again must be filed within a period of ten days or that right will be lost to you, and that is a motion challenging the validity of your guilty plea; that is, your plea has to have been entered knowingly, intelligently and voluntarily, and the Court must have had jurisdiction to accept your plea of guilty.

Appellant did not allege in his P.C.H.A. petition or attempt to prove at the hearing thereon that he had requested guilty plea counsel to challenge the validity of the guilty plea or that counsel was ineffective for having failed to do so. Under these circumstances, the failure to file a post-sentencing motion to challenge the validity of the guilty plea must be deemed a waiver of issues which might have been raised therein.

It follows that the first issue attempted to be raised by appellant has been waived. Whether his guilty plea was induced by an unlawfully obtained confession was not an issue which had been asserted in a post-sentencing motion challenging the validity of his guilty plea. Moreover, appellant’s contention that his guilty plea was involuntary because of an alleged, unlawfully obtained confession is wholly lacking in merit. In order to attack successfully a guilty plea on the ground that it was the product of an involuntary pre-trial confession, the appellant is required to demonstrate all of the following: “(1) an involuntary pre-trial confession ...; (2) that the guilty plea was primarily motivated by [the confession]; and (3) that [appellant] was incompetently advised by counsel to plead guilty, in the circumstances, rather than stand trial.” Commonwealth v. Miller, 494 Pa. 229, 235, 431 A.2d 233, 236 (1981), quoting Commonwealth v. Marsh, 440 Pa. 590, 593, 271 A.2d 481, 483 (1970). In language which is equally applicable to the instant case, the Miller court said:

Conviction after a guilty plea is based not on evidence in the hands of the Commonwealth, including a pre-trial confession, but rather on a defendant’s admission in open court that he committed the crime. The existence of an involuntary confession does not, in itself, prove that a defendant did not have the opportunity to make a reasonable choice, and thus it cannot, in itself, establish that the plea was not intelligently and knowingly entered. Id. Thus, it is critical to prove not only that one’s confession was involuntary, but also that it “was the primary motivation for his plea of guilty.” Commonwealth v. Garrett, 425 Pa. 594, 598, 229 A.2d 922, 925 (1967).

Id., 494 Pa. at 235-236, 431 A.2d at 236. Here, even assuming arguendo that appellant’s confession was illegally obtained, he did not attempt to prove at the P.C.H.A. hearing that his guilty plea was motivated by the alleged involuntary confession. On the contrary, his testimony depicted clearly a plea of guilty which had been motivated by what was then viewed as a favorable plea bargain. By that agreement, the charge of attempted rape was to be dropped and with respect to the charge of aggravated assault, to which appellant would plead guilty, he was to throw himself upon the mercy of the court without any recommendation by the Commonwealth. Under these circumstances, it is clear that appellant failed to prove a plea of guilty which was invalid because induced by an unlawfully obtained confession.

Appellant averred in his P.C.H.A. petition and attempted to prove at the hearing'that guilty plea counsel had been ineffective and had induced appellant to enter a plea of guilty by promising him that he would receive a sentence of imprisonment of not less than three years nor more than six years. The P.C.H.A. petition was the first opportunity to raise the issue of counsel’s alleged ineffectiveness after guilty plea counsel had been replaced by present counsel. This issue, therefore, was properly before the P.C.H.A. court. See, e.g.: Commonwealth v. Moore, 365 Pa.Super. 65, 68, 528 A.2d 1364, 1366 (1987); Commonwealth v. Broadwater, 330 Pa.Super. 234, 240-241, 479 A.2d 526, 530 (1984).

Appellant’s argument, however, was rejected because it was factually contradicted by guilty plea counsel, whose testimony the P.C.H.A. court found more credible. Therefore, the P.C.H.A. court found as fact that no such promise had been made. This finding is supported by competent evidence and is binding upon a reviewing court. Moreover, the P.C.H.A. court’s finding was confirmed by the answers which appellant had given during the guilty plea colloquy and by his testimony during the P.C.H.A. hearing. He said there had been no agreement about the specific sentence to be imposed. Instead, he had intended to seek the mercy of the court. He was disappointed because his actual sentence was not what he had hoped it would be. Even if we were to accept his allegations that counsel also predicted a lighter sentence, appellant would not be entitled to relief. See: Commonwealth v. Sanutti, 454 Pa. 344, 312 A.2d 42 (1973). See also: Commonwealth v. Cappelli, 340 Pa.Super. 9, 22, 489 A.2d 813, 819 (1985).

This brings us to the last and most troublesome issue. Appellant contends that the prosecution violated its agreement to make no recommendation to the court regarding the sentence to be imposed for aggravated assault. Initially, this issue must be placed in its proper context. As we have already observed, appellant did not file a motion to challenge the validity of his guilty plea within ten (10) days after the imposition of sentence as required by Pa.R.Crim.P. 321(a). Further, he has not contended that counsel was ineffective for failing to file a post-sentencing motion challenging the validity of his guilty plea and has failed to assert any other extraordinary circumstance which would have excused his failure. As a challenge to the validity of his guilty plea, therefore, this issue has been waived. What appellant objected to, and what he continues to object to, is that the sentence imposed by the trial court was excessive and may have been influenced by the Commonwealth’s breach of its agreement to make no recommendation as to sentencing. This is the issue which had been raised in appellant’s motion to modify sentence. When the trial court denied the motion summarily, a direct appeal was filed. Although this appeal was subsequently dismissed, it was dismissed solely because of counsel’s failure to file a timely brief. Moreover, the appeal was dismissed without prejudice to appellant’s right to proceed via P.C.H.A. petition. This sentencing issue was thereafter pursued in the P.C.H.A. proceedings and decided adversely to appellant by the P.C.H.A. court. As it affected the sentencing of appellant, therefore, the alleged failure of the Commonwealth to comply with its agreement to make no recommendation as to the sentence to be imposed is a viable issue properly before this Court for review.

The Commonwealth, to repeat, had specifically agreed as part of the negotiated plea arrangement to make no recommendation to the court with respect to the sentence to be imposed. At the sentencing hearing, defense counsel made a plea for mercy on behalf of appellant in which he emphasized the positive factors in appellant’s background, his remorse for the injuries which he had inflicted, and his cooperation with authorities in preventing an unrelated prison escape. The sentencing court then gave the representative of the Commonwealth an opportunity to respond. The assistant district attorney said:

Your Honor, just to state that the victim, Amanda Sager, is present in the courtroom today. Upon talking with her during the recess, she does not at this particular time wish to make a statement to the Court, but as was in the presentence and also in talking with them, they would request a maximum sentence be imposed because of the seriousness of the charge.

Even where a promise has been made to make no recommendation as to sentencing, a district attorney is not required to stand mute at the sentencing hearing. He or she may offer evidence and, in the face of misinformation by the defense, may speak to make necessary factual corrections. See: United States v. Block, 660 F.2d 1086 (5th Cir.1981), cert. denied, Block v. United States, 456 U.S. 907, 102 S.Ct. 1753, 72 L.Ed.2d 164 (1982); United States v. Johnson, 582 F.2d 335 (5th Cir.1978), cert. denied, Johnson v. United States, 439 U.S. 1051, 99 S.Ct. 732, 58 L.Ed.2d 711 (1978). However, where the Commonwealth has agreed to make no recommendation as to sentencing but, nevertheless, recommends “a period of incarceration”, a breach of the plea agreement has occurred. Commonwealth v. Williams, 333 Pa.Super. 77, 481 A.2d 1230 (1984). Indeed, it has been held to be a breach of an agreement to make no recommendation as to sentencing for the prosecuting attorney to launch an assault on a defendant’s character for the purpose of rebutting defense counsel’s plea for leniency. Thus, in United States v. Crusco, 536 F.2d 21 (3rd Cir. 1976), the Court saw “the Government’s characterization [of defendant as a major and dangerous member of organized crime] as a transparent effort to influence the severity of [defendant’s] sentence.” Id. at 26.

In the instant case, the assistant district attorney clearly violated the plea agreement to make no recommendation as to sentencing when he told the sentencing court that “they” were asking the court to impose a maximum sentence. It was, no matter how phrased, a transparent attempt to influence the severity of the sentence by recommending incarceration for the maximum term allowed by law. The district attorney may be able to distinguish technically between a prosecution recommendation, on the one hand, and a recommendation by the victim of the crime and the arresting police officer, on the other; but the distinction is slight and not readily understood by the lay person who stands before the court for sentencing. Whether the recommendation for a maximum sentence technically originated with the victim, the arresting officer, or the district attorney, it was made to the court by the district attorney. As such, it carried with it the same force and the same authority as if the recommendation had originated with the representative of the Commonwealth. “Only a stubbornly literal mind would refuse to regard the [District Attorney’s] commentary as communicating a position on sentencing.” United States v. Crusco, supra.

The order dismissing appellant’s P.C.H.A. petition is affirmed in part and reversed in part. The judgment of sentence is vacated, and the case is remanded for resentencing by another judge. Jurisdiction is not retained.

      . In April, 1987, more than a year after the imposition of sentence and several months after the P.C.H.A. hearing, appellant mailed to the Clerk of Courts a copy of a “Motion for Change of Plea” which contained thereon a date of February 7, 1986. The “motion" was general and alleged no reasons therefor. Because it had not been filed or previously presented to the court and had not been referred to during the evidentiary hearing, the P.C.H.A. court did not consider it. Similarly, the record before this Court is inadequate to enable us to determine that it was a circumstance which prevented a waiver of the issues raised on appeal. This is particularly so in view of the fact that on February 7, 1986, appellant was represented by counsel who, on February 14, 1986, filed on appellant’s behalf a motion to modify sentence. Appellant has not contended that guilty plea counsel was ineffective for failing to file a motion challenging the validity of the guilty plea.

      . This fact distinguishes the instant case from a decision of a panel of this Court in Commonwealth v. Williams, 333 Pa.Super. 77, 481 A.2d 1230 (1984). It was there held that the appropriate remedy for the prosecuting attorney’s breach of an agreement to make no recommendation as to sentencing was to permit the defendant to withdraw his plea of guilty.

      . Our review of the pre-sentence report fails to disclose any request by the victim for imposition of the maximum sentence allowed.

      . Although it is unclear from this passage precisely to whom the assistant district attorney was referring it appears most likely that the reference was to the victim and a police officer.

      . The federal decisions seem to draw a distinction between a promise "to take no position” and a promise to "make no recommendation” as to sentencing. In the former situation, the prosecuting attorney is required to stand mute; whereas, in the latter, the prosecuting attorney may comment in rebuttal of defense arguments in mitigation of sentence. See: United States v. Miller, 565 F.2d 1273 (3rd Cir.1977), cert. denied, Miller v. United States, 436 U.S. 959, 98 S.Ct. 3076, 57 L.Ed.2d 1125 (1978). The distinction has been criticized as being artificial. United States v. Miller, supra at 1275-1276 (Stern, D.J., dissenting). We find it unnecessary in this appeal to determine the validity of such a distinction.


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    539 A.2d 405
    DERRY TOWNSHIP MUNICIPAL AUTHORITY, A Pennsylvania Municipal Corporation, Appellant, v. SOLOMON AND DAVIS, INC., A Pennsylvania Corporation, and The American Arbitration Association, Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 19, 1987.
    Filed March 14, 1988.

      David C. Pohland, Greensburg, for appellant.
    John M. Purcell, Uniontown, for appellees.
    Before WIEAND, MONTEMURO and POPOVICH, JJ.
   MONTEMURO, Judge:

Appellant Derry Township Municipal Authority (“Derry”) appeals from an order of the Court of Common Pleas, Westmoreland County, denying the municipal authority’s petition to vacate, modify or correct an arbitration award in favor of appellee Solomon and Davis, Inc. (“Solomon”).

In May 1980, Derry awarded to Solomon three contracts, numbered 6, 7 and 8, for construction of various portions of a sanitary sewer system. As part of its contract obligation, Solomon was required to repave any areas dug up for the sewer construction. The case before us concerns a dispute that arose only in regard to Contracts # 6 and # 7. Under Contract # 7, repaving work was begun in the summer of 1980 and was completed around July 1981, before any work was begun under Contract # 6. In or around September 1981 a dispute arose concerning certain descriptions for repaving materials contained in all three contracts. See generally N.T., Arbitration Hearing, Vol. II, June 8, 1984, at 357-72. Solomon asserted that prior to bidding, it had contacted Derry’s project engineer employed by Derry who had indicated that a material costing $2.00 per square yard could be used in the repaving. Solomon had made its bid accordingly. However, during paving restoration, Derry’s project engineer allegedly directed Solomon to repave the streets, not with the material Solomon had planned and budgeted to use at $2.00 per square yard, but with another material at a cost of $18.00 per square yard. Derry paid the rate for the difference in materials under Contract # 7, but before work was begun under Contract # 6, attempted to hold Solomon to its $2.00 per square yard bid and tried to place responsibility for any mistake upon Solomon. Derry also challenged the quality of the paving materials actually used by Solomon. Derry then informed Solomon that there had been an overpayment under Contract # 7 and accordingly charged off a credit against Solomon for the difference. See Trial Court Opinion at 3-4.

Pursuant to its written contract with Derry, Solomon submitted its claim for excess payment over the bid price to the American Arbitration Association (“AAA”). The case was heard before a panel of three arbitrators, and, on August 23, 1984, the AAA entered an award in Solomon’s favor on Contract # 6 and in Derry’s favor on Contract # 7. Both parties filed cross petitions to the Court of Common Pleas, Westmoreland County, to vacate, modify or correct the award. Before addressing the issues raised by the parties, the court had to determine whether it was reviewing a proceeding brought under common law or statutory arbitration, and then decide what standard of review to apply. The court concluded that the parties were proceeding under common law arbitration, that the standard of review was governed by the Arbitration Act of 1980, and that, accordingly, neither party had alleged sufficient reasons to vacate, modify or correct the arbitration award.

Only Derry pursues its claim on appeal to this Court. The appeal raises three issues: (1) whether the court of common pleas concluded correctly that the parties were proceeding under the Arbitration Act of 1980 rather than the Arbitration Act of 1927; (2) whether the court concluded correctly that the parties were proceeding under common law arbitration; and (3) whether the court applied the appropriate standard of review when it denied relief to Derry. We affirm.

Whether the parties are proceeding under the 1927 Act or the 1980 Act is of critical importance to Derry’s chances of relief on review in the court of common pleas. If the 1927 Act applies and the matter is one of statutory arbitration, Derry will obtain a relatively broad standard of review: the court will modify or correct an award if it is “against the law, and is such that had it been a verdict of the jury the court would have entered [a] different or other judgment notwithstanding the verdict.” 5 P.S. § 171(d). Similarly, if the 1980 Act applies and the controversy is governed by the rules relatirig to statutory arbitration and the matter falls within the narrowly drawn provision of 42 Pa.C.S.A. § 7302(d)(1), Derry will receive the same relatively broad standard of review it would receive under the 1927 Arbitration Act. See 42 Pa.C.S.A. § 7302(d)(2) (the court shall “modify or correct the award where the award is contrary to law and is such that had it been the verdict of a jury the court would have entered a different judgment or a judgment notwithstanding the verdict”). The judgment notwithstanding the verdict standard of review provided in the 1927 Act, at 5 P.S. § 171(d), or in the 1980 Act, at 42 Pa.C.S.A. § 7302(d)(2), empowers the court to correct an arbitration award for a mistake of law. Gentile v. Weiss, 328 Pa.Super. 475, 480 n. 3, 477 A.2d 544, 546 n. 3 (1984). On the other hand, if the 1980 Act applies and Derry's controversy is subject to general provisions concerning statutory arbitration (not the special provision of § 7302(d)(2)), Derry will receive a narrow standard of review and is not as likely to obtain relief as it might under either the 1927 Act or pursuant to the narrow provision of the 1980 Act. With statutory arbitration under the 1980 Act, the court shall vacate an order if (1) the award would be vacated under the standard of review for common law arbitration; (2) there was partiality, misconduct, or corruption on the part of the arbitrators that prejudiced the rights of any party; (3) the arbitrators exceeded their powers; (4) the hearing was conducted contrary to the proper procedure in such a way as to prejudice substantially the rights of any party; and (5) there was no agreement to arbitrate and the issue was not determined adversely in proceedings to stay or compel arbitration, and the party seeking vacation raised the issue at the hearing. 42 Pa.C.S.A. § 7314(a). Additionally, the court, proceeding according to the rules for statutory arbitration pursuant to the 1980 Act, shall modify or correct an award where “(1) there was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award; (2) the arbitrators awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or (3) the award is deficient in a matter of form, not affecting the merits of the controversy.” 42 Pa.C.S.A. § 7315(a). If the parties’ contracts are determined to be governed by the rules pertaining to common law arbitration, whether or not the 1980 Act applies, Derry will obtain relief only in the narrowly circumscribed situation where “it is clearly shown that a party was denied a hearing or that fraud, misconduct, corruption or other irregularity caused the rendition of an unjust, inequitable or unconscionable award.” 42 Pa.C.S.A. § 7341. See also Freeman v. Ajax Foundry Products, 398 Pa. 457, 159 A.2d 708, 712 (1960) (quoting Reading Tube Cory. v. Steel Workers Federation, 173 Pa.Super. 274, 279, 98 A.2d 472, 474 (1953) (prior to codification in Title 42 of the Pennsylvania Code, the scope of judicial review in common law arbitration was established by case law and was limited to situations where it could “be shown by clear, precise and indubitable evidence that the parties were not given a hearing, or that there was fraud, misconduct, corruption or some other irregularity on the part of the arbitrators which caused them to render an unjust, inequitable, and unconscionable award”).

We now turn to the question of which Act applies. The parties executed their contracts in May 1980. At that time, the Arbitration Act of 1927 was still in effect. The work under Contract # 7 began in June 1980 and was completed by July 1981. N.T., Arbitration Hearing, June 8, 1984, at 369. The dispute arose sometime around September 1981, and the matter was submitted to arbitration sometime thereafter. The Arbitration Act of 1927 was repealed by the JARA Continuation Act of 1980, Act of October 5, 1980, P.L. 693, No. 142, Section 501(c). As of December 5, 1980, the effective date of the Arbitration Act of 1980, statutory, common law and judicial arbitration was governed by 42 Pa.C.S.A. §§ 7301-7362. The 1927 Act was no longer in effect. Whether we use the date the dispute arose or the date the matter was submitted to arbitration, the Act of 1980 was in effect and governs the parties’ arbitration. See Vogel v. National Grange Mutual Insurance Co., 332 Pa.Super. 384, 386-87 n. 2, 481 A.2d 668, 669 n. 2 (1984) (law extant at time cause of action arises governs subsequent arbitration). Cf. Pasternak v. State Farm Mutual Automobile Insurance Co., 350 Pa.Super. 448, 504 A.2d 925 (1986) (where cause of action arose prior to the repeal of the 1927 Act, but arbitration occurred after, the provisions of the 1927 Act were applied).

Having concluded that the parties' proceeding is governed by the 1980 Act, we turn to § 7302(a) of that Act. There the general rule concerning the question of whether arbitration will be governed by statutory or common law rules is set forth:

An agreement to arbitrate a controversy on a nonjudicial basis shall be conclusively presumed to be an agreement to arbitrate pursuant to Subchapter B (relating to common law arbitration) unless the agreement to arbitrate is in writing and expressly provides for arbitration pursuant to this subchapter [governing statutory arbitration] or any similar statute, in which case the arbitration shall be governed by this subchapter

Subsection (c) of § 7302 provides:

This subchapter shall apply to any written contract to which a government unit of this Commonwealth is a party to the same extent as if the government unit were a private person, except that where a contract to which the Commonwealth government is a party provides for arbitration of controversies but does not provide for arbitration pursuant to any specified statutory provision, the arbitration shall be governed by this subchapter [pertaining to statutory arbitration].

Derry is a “government unit,” not part of the “Commonwealth government.” Section 7302(c) establishes two different presumptions with respect to contracts involving government units on the one hand, and contracts to which the Commonwealth government is a party, on the other. Contracts involving a government unit such as Derry are subject to the same presumptions under the subchapter relating to statutory arbitration as if the government unit were a private person. Therefore, contracts containing arbitration clauses entered into by a government unit are presumed to provide for common law arbitration, see 42 Pa.C.S.A. § 7302(a), unless the parties affirmatively reserve their right to statutory arbitration and review as outlined in the Historical Note to 42 Pa.C.S.A. § 7302. (See discussion infra.) Conversely, contracts involving the Commonwealth government are not subject to a common law arbitration presumption, but rather are governed by the rules pertaining to statutory arbitration even without an affirmative provision in their contracts reserving such a right.

To preserve their right to statutory arbitration and a standard of review identical to that for a judgment notwithstanding the verdict (the standard used under the 1927 Act and now contained in the 1980 Act at 42 Pa.C.S.A. § 7302(d)(2)), Derry and Solomon would have had to include in their agreement a provision expressly providing both for statutory arbitration and stating that the agreement “shall be interpreted pursuant to the law of this Commonwealth” or provide in their agreement for “arbitration pursuant to the former provisions of the Act of April 25, 1927 (P.L. 381, No. 248), relating to statutory arbitration.” 42 Pa.C.S.A. § 7302, Historical Note. Alternatively, if there is evidence subsequent to the agreement that the parties expressly or implicitly agreed to statutory arbitration, then such rules will apply. Gentile, supra, 328 Pa.Super. at 479, 477 A.2d at 546. The parties took none of these affirmative steps to preserve their right to statutory arbitration. Instead, the parties provided that any dispute would be submitted to the American Arbitration Association, and that the “agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law ” (emphasis added). Because the arbitration provision contained in Derry’s contracts with Solomon does not expressly provide for statutory arbitration, the agreement does not overcome the presumption that the controversy will be governed by the rules pertaining to common law arbitration. We agree with the trial court's statement that the parties’ arbitration clause

“refers to ‘prevailing arbitration law’ only with respect to the enforceability of the agreement. The agreement to arbitrate simply provides for disputes to be resolved through arbitration conducted in accordance with the construction industry arbitration rules of the American Arbitration Association.[] This arbitration clause does not expressly provide for statutory arbitration. Consequently, the Derry/Solomon agreement does not come within the scope of Section 7302.
“Also, the reference to ‘prevailing arbitration law’ is ambiguous. Prevailing arbitration law may refer to the law ‘prevailing at the time the agreement was made’ or it may refer to the law ‘prevailing at the time of the dispute.’ Consequently, this agreement’s reference to ‘prevailing law’ does not overcome Section 7302(a)’s presumption for common law arbitration.
“We recognize that if either party had wanted statutory arbitration at the time the parties entered into their agreement, that party may have believed that there was no need to include an express provision for statutory arbitration in the agreement because under existing law at that time, the parties’ arbitration agreement would have been governed by the Arbitration Act of 1927. However, we do not know that either party wanted statutory arbitration. Moreover, Derry has no vested or reliance interests that the law will protect____
“When it repealed the Arbitration Act of 1927, the Legislature in Section 501(b) of the JARA Continuation Act of 1980, included a savings clause for agreements that expressly provided for arbitration pursuant to the Arbitration Act of 1927. SEE Historical Note to 42 Pa.C.S. § 7302. However, the Legislature did not include a similar savings clause for agreements involving government bodies that did not expressly provide for statutory arbitration____”

Trial Court Opinion at 8-9 (quoting trial court opinion in Derry Township Municipal Authority v. Solomon and Davis, Inc., et al., No. GD 83-15249 (Court of Common Pleas, Allegheny County)).

Having concluded that the parties’ arbitration clause does not overcome the common law presumption of 42 Pa.C.S.A. § 7302(a), we find that their controversy is governed by common law arbitration. Under common law arbitration, a court will vacate or modify an award only if an appellant shows “ ‘by clear, precise and indubitable evidence that he was denied a hearing, or that there was fraud, misconduct, corruption or some other irregularity of this nature on the part of the arbitrator which caused him to render an unjust, inequitable or unconscionable award____’” Chervenak, Keane v. Hotel Rittenhouse Assoc., 328 Pa.Super. 357, 361-62, 477 A.2d 482, 485 (1984) (quoting Harwitz v. Selas Corp. of America, 406 Pa. 539, 542, 178 A.2d 617, 619 (1962) (emphasis added). Accord 42 Pa.C.S.A. § 7341. The irregularity refers to “the process employed in reaching the result of the arbitration, not the result itself.” Chervenak, supra, 328 Pa.Super. at 362, 477 A.2d at 485 (citing Press v. Maryland Casualty Co., 227 Pa.Super. 537, 540, 324 A.2d 403, 404 (1974)). In Chervenak we also stated that

“[a]s to questions of law and fact, ... [the arbitrators are] the final judge[s] and the award is not subject to disturbance of mistake either. [A] contrary holding would mean that arbitration proceedings instead of being a quick and easy mode of obtaining justice, would be merely an unnecessary step in the course of litigation, causing delay and expense, but settling nothing finally.”

Id. 328 Pa.Super. at 362, 477 A.2d at 485 (citations omitted).

We now turn to Derry’s allegations supporting its petition to vacate, modify or correct the award. Derry claims that the arbitration award is in error because (1) the record is devoid of competent evidence to support the arbitrators’ conclusion that there was a mutual mistake between the parties when they executed the contracts; (2) evidence indicates that the work performed by Solomon was not performed according to specification; (3) the weight of the evidence established that the township authority had complied with its contractual duties and liabilities; and (4) evidence presented at the hearing shows that a change order, required by the contract for a higher price, was never approved by Derry. Accordingly, Derry asserts that the arbitrators’ award with respect to Contract # 6 is contrary to the law, and had the award been a verdict of the jury, the court would have entered a different verdict or a judgment notwithstanding the verdict.

We find, as did the trial court, that Derry has failed to raise allegations upon which relief may be granted under the standard of review for common law arbitration. Derry has not presented any claim that it was denied a hearing or that there was fraud or misconduct on the part of the arbitrators. We adopt the trial court’s reasoning in denying any relief to Derry on appeal:

The issues that Derry presents in its Petition center on the arbitrators’ possible reliance on hearsay evidence concerning certain telephone calls and the weight to be placed on certain testimony relating to core sample tests of the repaving work, approval of change orders by Derry, and Derry’s compliance with its contract duties and obligations. First of all, the Construction Industry Arbitration rules of the AAA (specifically Rule 31), which governed this proceeding, do not require “conformity to legal rules of evidence” and, therefore, the rules with regard to hearsay are relaxed. SEE also Reisman v. Ranoel Realty Co., 224 Pa.Super. 220, 303 A.2d 511 (1973). Secondly, Derry’s assertions concerning evidentiary and factual matters and its contention that the award is “contrary to the law” or such that a court would overturn the same by entering a “judgment notwithstanding the verdict,” do not constitute the type of irregularity required for vacating a common law arbitration award. The irregularity required to set aside a common law arbitration award “refers to the process employed in reaching [the] result of the arbitration, not the result itself. Chervenak, Keane and Company, supra [477 A.2d], at 485. From the over 1,000 pages of hearing transcript, it is apparent that the arbitrators had ample evidence to consider to reach their ultimate conclusions, whether we would agree or disagree with those conclusions. The arbitrators were the triers of fact and determiners of the law. They decided the weight to be given to the testimony and assessed the credibility of those presenting it. The scope of review permitted this Court does not in this instance allow the Court to disturb their findings.

Trial Court Opinion at 12-13.

Because Derry has made no allegations upon which relief can be granted pursuant to common law arbitration, we affirm the trial court’s order which affirmed the the arbitrators’ award of August 23, 1984.

      . In its arbitration claim, Solomon asserted damages under Contract # 6 of $78,930.54. The AAA awarded Solomon $43,850.30 for its claim under Contract #6. Solomon’s claim under Contract #7 totalled $83,265.50. On that claim, the panel found in Derry’s favor and awarded Solomon nothing.

      . Act of 1980, October 5, P.L. 693, No. 142, § 501(c), 42 Pa.C.S.A. §§ 7301-7362.

      . Act of 1927, April 25, P.L. 381, No. 248, 5 P.S. §§ 161-179. The Act of 1927 was repealed by the JARA Continuation Act of 1980, October 5, P.L. 693, No. 142, § 501(c), effective in 60 days.

      . Prior to reaching the merits of this appeal, we address the issue of whether this appeal is properly before this Court despite the fact that the Commonwealth Court has exclusive jurisdiction of
      appeals from final orders of the courts of common pleas in the following cases: ... [ajll actions ... where is drawn in question the application, interpretation or enforcement of any: (A) statute regulating the affairs of political subdivisions, municipality and other local authorities____
      42 Pa.C.S.A. § 762(a)(4)(i)(A). In this case, our interpretation of a statute, the Uniform Arbitration Act at 42 Pa.C.S.A. §§ 7301-7362, will necessarily affect the parties to this action, and one of the parties is a municipal authority. However, this appeal does not come within the purview of the exclusive jurisdiction of the Commonwealth Court, as outlined in 42 Pa.C.S.A. § 762, because the Uniform Arbitration Act does not “regulate the affairs” of the municipal authority. The “affairs” of a municipality, “for the purposes of a statute conferring jurisdiction on a court of authority and expertise in administrative and governmental areas, are the business of the subdivision — its general operations.” Wheatcroft v. Auritt, 226 Pa.Super. 118, 123-25, 312 A.2d 441, 445-46 (1973) (footnote omitted) (emphasis added). A statute governing arbitration matters, regardless of whether the parties would be classified as private or public, does not regulate the affairs of a municipality. We note, additionally, that the parties have not objected to our jurisdiction. Therefore, regardless of whether or not jurisdiction would properly lie with the Commonwealth Court, we may decide the appeal. See Jost v. Phoenixville Area School District, 267 Pa.Super. 461, 465 n. 1, 406 A.2d 1133, 1135 n. 1 (1979); Pa.R.A.P. 741(a).

      . The 1927 Arbitration Act provides for other standards of review. See 5 P.S. §§ 170(a)-(d), 171(a)-(c). However, given the nature of Derry’s allegations in support of its petition to vacate, modify or correct the award, the substance of Derry’s allegations will be reached and reviewed by the court only if the judgment notwithstanding the verdict standard of review applies.

      . If the controversy falls under one of the following provisions, a court will correct or modify an award if it is "contrary to law and is such that had it been a verdict of a jury the court would have entered a different judgment or a judgment notwithstanding the verdict," 42 Pa.C.S.A. § 7302(d)(2):
      (i) The Commonwealth government submits a controversy to arbitration.
      (ii) A political subdivision submits a controversy with an employee or a representative of employees to arbitration.
      (iii) Any person has been required by law to submit or agree to submit a controversy to arbitration pursuant to this subchapter [relating to statutory arbitration].
      42 Pa.C.S.A. § 7302(d)(1).

      . See 42 Pa.C.S.A. § 7304.

      . A "government unit” includes “any government agency.” 42 Pa.C. S.A. § 102. A “government agency" is “[a]ny Commonwealth agency or any political subdivision or municipal or other local authority----” Id.

        . The term "Commonwealth government" “does not include any political subdivision, municipal or other local authority----" 42 Pa.C.S.A. § 102.

      . Derry argues that because both parties asserted in their petitions to vacate, modify or correct the awards that the standard of review was that for a judgment notwithstanding the verdict, the parties have demonstrated an intent to proceed with the standard of review contained in the 1927 Act. We are unpersuaded by Derry’s argument. The parties’ agreement contains their understanding concerning arbitration. The later action of the parties is ambiguous at best and does not override the original intent of the parties as expressed by them in writing in their contract. It is likely that the parties asserted the same standard of review in their petitions, not because of any meeting of ■ the minds or agreement on their part, but because of either a misinterpretation of the applicable statute or by application of the wrong statute.

      . The parties’ arbitration clause provided in full that
      [a]ll claims, disputes and other matters in question arising out of, or relating to, the CONTRACT DOCUMENTS or the breach thereof, except for claims which have been waived by the making and acceptance of final payment ..., shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. Contract Documents for Construction of Sewerage Project for Derry Township Municipal Authority, Contract One to Nine, Section I, General Condition 30.1, p. 1-15.

      . In another case before this Court wherein the private parties agreed in their contract that arbitration was to be held according to the rules of the American Arbitration Association, we stated that "[t]his ‘constitutes failure to follow the procedures of the Arbitration Act and [is], therefore, inconsistent with it so as to be sufficient in itself to make the arbitration at common-law.’ ’’ Gentile v. Weiss, 328 Pa.Super. 475, 479, 477 A.2d 544, 546 (1984) (quoting Runewicz v. Keystone Insurance Co., 476 Pa. 456, 461, 383 A.2d 189, 191 (1978)).

      . The parties had a dispute concerning Contract #8, which they pursued through arbitration and appeal to the Court of Common Pleas, Allegheny County. That litigation does not concern us in the instant appeal.


author: KELLY, Judge:

text:
    539 A.2d 412
    COMMONWEALTH of Pennsylvania, Appellant, v. Thomas K. DOUGLASS, Appellee.
    Superior Court of Pennsylvania.
    Argued May 14, 1987.
    Filed March 14, 1988.

      Patrick H. Mahady, Latrobe, for appellee.
    Before WIEAND, KELLY and POPOVICH, JJ.
   KELLY, Judge:

The Commonwealth appeals from an order dismissing a homicide by vehicle while driving under the influence (75 Pa.C.S.A. § 3735) complaint against appellee, Thomas K. Douglass, based upon an alleged violation of Pa.R.Crim.P. 130. The Commonwealth presents two contentions on appeal: first, that the trial court erred in concluding that an “arrest” had occurred within the meaning of Pa.R.Crim.P. 130; and second, that the trial court erred in concluding that the five day period for filing a complaint prescribed by Pa.R.Crim.P. 130(d) had expired. Appellee responds that the first contention is without merit, and that the second contention was not raised in the trial court, and therefore, has been waived. We find merit in the first contention; and accordingly, vacate the order of the trial court, reinstate the complaint, and remand for further proceedings. In light of our disposition of the Commonwealth’s first contention, we do not decide whether the second issue has been properly preserved.

I.

Ordinarily, a decision to dismiss a complaint is deemed an interlocutory order, and the Commonwealth’s sole avenue of redress is to bring the matter before a new issuing authority before the expiration of the statute of limitations period. See Commonwealth v. Revtai, 516 Pa. 53, 66, 532 A.2d 1, 11 (1987); Commonwealth v. Allem, 367 Pa.Super. 173, 182, 532 A.2d 845, 848 (1987). Nonetheless, this Court granted immediate appeal of an identical order in Commonwealth v. Press, 342 Pa.Super. 507, 493 A.2d 705 (1985) and, on review, our Supreme Court gave no indication that direct appeal of the discharge order was improper. Thus, we find that an order granting discharge on grounds which would ostensibly preclude the refiling of new charges is not subject to de novo review by another issuing authority, but is instead subject to direct appeal as a final order. Cf. Commonwealth v. Prado, 481 Pa. 485, 488, 393 A.2d 8, 10 (1978) (where local rule effectively precludes the refiling of the complaint before another issuing authority a direct appeal of the dismissal of the complaint is permitted); accord Commonwealth v. Allem, supra, 367 Pa.Superior Ct. at 179, 532 A.2d at 848. Because the order purports to preclude the refiling of charges in the instant case, we find that the Commonwealth is effectively “out of court” and that the order is final for purposes of review.

II.

Although we are aware of no cases directly on point, we find that the scope of review for an appeal from an order granting a discharge for violation of Pa.R.Crim.P. 130 is undoubtedly the same as the scope of review of suppression orders entered for violations of Pa.R.Crim.P. 130. Cf. Commonwealth v. Duncan, 514 Pa. 395, 399-402, 525 A.2d 1177, 1179-80 (1987). That limited scope of review was summarized in Commonwealth v. White, 358 Pa.Super. 120, 516 A.2d 1211 (1986), as follows:

Our scope of review is limited primarily to questions of law. We are bound by the suppression court’s findings of fact, if those findings are supported by the record. In determining whether the findings of fact are supported by the record, we are to consider only the evidence of the appellees and so much of the evidence of the appellant which, as read in the context of the record as a whole, remains uncontradicted. It is for the suppression court as the trier of fact, rather than the reviewing court, to determine credibility. However, we are not bound by findings wholly lacking in evidence. Nor are we bound by the suppression court’s conclusions of law.

358 Pa.Superior Ct. at 123, 516 A.2d at 1212-13 (citations omitted).

III.

The facts of this case were summarized by the trial court as follows:

Defendant was involved in an automobile accident at approximately 8:00 P.M. on May 12, 1986, with Steven M. Ramsey, who died as a result of this accident.
At approximately 8:50 P.M. Trooper Ault of the Pennsylvania State Police arrived at the accident scene. Trooper Ault testified that from his investigation, he determined that defendant's vehicle had crossed over the center line striking the victim’s vehicle in the victim’s lane of traffic. Further investigation by the officer and questioning of the defendant led Trooper Ault to believe that defendant had been driving under the influence. Trooper Ault determined that the defendant had an odor of alcohol about his person, and further defendant admitted that prior to the accident he had consumed ‘a few beers’. Trooper Ault directed that the defendant remain at the accident scene while he continued his investigation. The Trooper completed his investigation at approximately 11:00 P.M. and requested the defendant to accompany him to the State Police Barracks in order that an intoxilyzer test could be administered to the defendant. The defendant complied and two tests were performed, but the differentiation in results made the tests invalid. At approximately 11:45 P.M. Trooper Ault requested that the defendant accompany him to the Indiana Hospital for the purpose of obtaining a blood sample, defendant complied. The results of the blood tests were received from the State Police Laboratory May 14, 1986, showing that the defendant’s blood alcohol content was .105% on May 12, 1986. A criminal complaint was filed against the defendant by Officer Ault on May 19,1986, charging the defendant with driving under the influence of alcohol and homicide by vehicle while under the influence of alcohol.

(Trial Court Opinion at 1-2).

Although this summary of the facts of the case is generally supported by the record, for reasons which shall become apparent, infra, we find that a more precise statement of certain facts “which as read in the context of the record as a whole, remain uncontradicted” is necessary for the proper disposition of this appeal. The trial court’s findings of fact áre therefore supplemented as follows.

After witnesses indicated that appellee was the driver of one of the vehicles involved in the fatal crash, the investigating officer asked appellee “what happened?” and appellee responded, “I don’t know what happened. I think he came over at me. This happened about 8:00.” (N.T. 9/29/86 at 5-6, investigating officer; N.T. 9/29/86 at 29, appellee). The officer also asked if appellee needed medical attention; appellee responded that he did not. (N.T. 9/29/86 at 6-7, investigating officer; N.T. 9/29/86 at 29, appellee). Then, “[h]e [the investigating officer] asked me [appellee] to remain at the scene of the accident until he was done with the investigation.” (N.T. 9/29/86 at 29, appellee). The investigating officer proceeded to conduct an initial traffic accident investigation, determining the identity of witnesses, securing physical evidence and appropriate measurements, and speaking with the coroner. (N.T. 9/29/86 at 3-7, 13-17, investigating officer; N.T. 9/29/86 at 29-30, appellee). During the investigation, the investigating officer occasionally looked over at, or in the direction of, appellee. (N.T. 9/29/86 at 13-14, investigating officer; N.T. 9/29/86 at 30, appellee). At no time during appellee’s detention at the scene of the accident was he told that he was under arrest. (N.T. 9/29/86 at 7, investigating officer; N.T. 9/29/86 at 35, appellee).

The trial court indicated in its opinion that the investigating officer “requested” that appellee submit to a breathalyzer test and later to a blood test, and that appellee “complied.” Trial Court Opinion at 2, 4. The trial court also characterized these events by stating that appellee was “directed to remain at the accident scene, and to accompany the trooper to the State Police Barracks and to the hospital for tests of his blood and breath.” Trial Court Opinion at 3. To the extent that the trial court’s findings may be construed to suggest that appellee did not freely consent to being transported to the police barracks and then to the hospital for tests of his breath and blood, we find such findings wholly without support in the record and indeed contrary to the admissions of appellee and the uncontradicted testimony of the investigating officer.

Appellee testified that after the investigating officer completed his initial on-site accident investigation:

A. He asked me if I would go with him, and he asked me if I had any objections to an intoxilyzer.
Q. And what did you respond?
A. I said I did not have any objections.

(N.T. 9/29/86 at 30). Appellee rode with the investigating officer to the police barracks in a patrol car; appellee was not handcuffed. (N.T. 9/29/86 at 8, 17, investigating officer; N.T. 9/29/86 at 30, 35, appellee). At the barracks, appellee was observed for twenty minutes before the breathalyzer tests were performed; the tests were delayed an additional ten minutes when it was discovered that appellee had gum in his mouth (which could negatively affect the results of the test). (N.T. 9/29/86 at 31, appellee). Because of the variance between the test readings, the breathalyzer tests were deemed invalid under applicable regulations. (N.T. 9/29/86 at 9, 23, investigating officer; N.T. 9/29/86 at 31-32, appellee).

The investigating officer then determined that a blood test would be necessary. The investigating officer testified that appellee was asked if he would consent to a blood test and appellee responded that he had no objections. (N.T. 9/29/86 at 10). Appellee testified on direct examination:

Q. Keep your voice up. What did you — What did he then do or direct you to do?
A. He told me we was going to Indiana Hospital to take a blood test.
Q. Did you agree with that?
A. I don’t remember if I said anything or not.

(N.T. 9/29/86 at 32). Thus, we find that there is no support in the record for a finding that appellee “complied” rather than “consented,” or that appellee’s consent to be transported and to take breath and blood tests was “directed” as opposed to “requested.”

Upon arriving at the hospital, appellee was permitted to call his wife so that she could take him home after the blood test was completed. (N.T. 9/29/86 at 18, investigating officer; N.T. 9/29/86 at 32, 35, appellee). After appellee’s wife arrived, appellee was read the Miranda warnings. We note that with regard to those warnings appellee testified on direct examination:

Q. When he advised you of your Miranda Warnings; that is, that you were a suspect in the crime of what I’ve told you about, at that point in time, did you feel that you were free to go?
A. After he told me — After he read the Miranda Warnings?
Q. Up to that point.
A. No.
Q. When you were read your Miranda Warnings, did that, in fact, tell you something, that you were accused of the commission of a crime?
A. I thought he was going to arrest me. I didn’t know too much about it.

(N.T. 9/29/86 at 34). (Emphasis added). Apparently, up to the point the Miranda warnings were given appellee did not feel he had been arrested, and even after the warnings were given he was not certain whether he was going to be arrested. Moreover, appellee testified on cross-examination:

Q. Was the word arrest ever used by Trooper Ault?
A. No, sir, just in the Miranda Warnings.
Q. Just in the Miranda Warnings. Before he gave you the Miranda Warnings, he didn’t even mention that you were a suspect in any particular crime, did he?
A. No, sir.
Q. And certainly you knew you would be free to go once you were given permission to call your wife, isn’t that correct?
A. Yes, sir.

(N.T. 9/29/86 at 35). (Emphasis added). With the trial court’s statement of the facts thus supplemented, we proceed to a review of the merits of the appeal.

IV.

The Commonwealth first contends that the trial court erred in concluding that appellee was “arrested” so as to trigger commencement of the five day rule of Pa.R.Crim.P. 130(d). The Commonwealth argues that appellee’s detention at the scene and the detention necessary to complete the blood tests were merely investigative and not custodial and, therefore, no “arrest” occurred to trigger application of Pa.R.Crim.P. 130(d). The Commonwealth cites in support of its argument Commonwealth v. Quarles, 229 Pa. Super. 363, 324 A.2d 452 (1974).

Appellee responds that any act or acts which indicate an intention to take a suspect into custody and subject the suspect to the control and will of the police constitute an arrest. Appellee argues that, because he reasonably believed that he was not free to leave, an arrest for the purposes of Pa.R.Crim.P. 130 had occurred. Appellee cites in support of his argument: Commonwealth v. Haggerty, 495 Pa. 612, 435 A.2d 174 (1981); Commonwealth v. Meyer, 488 Pa. 297, 412 A.2d 517 (1980); Commonwealth v. Richards, 458 Pa. 455, 327 A.2d 63 (1974); Commonwealth v. Maddox, 307 Pa.Super. 524, 453 A.2d 1010 (1982); Commonwealth v. Benson, 280 Pa.Super. 20, 421 A.2d 383 (1980); and Neitz v. Commonwealth, Dept. of Transportation, 96 Pa.Cmwlth. 1, 506 A.2d 961 (1986).

The trial court found that appellee was “arrested” for the purposes of Pa.R.Crim.P. 130. Because we find that appellee was never subjected to formal arrest or a custodial detention, we cannot agree. Our reasoning follows.

A.

A police encounter with a suspect may properly be characterized as a mere encounter, an investigative detention, a custodial detention, or a formal arrest. See generally 3 LaFave, Search and Seizure, §§ 9.1, 9.2 at 332-422 (1987) (discussing the genesis of the Terry stop and the limits of permissible investigative detentions); LaFave, Classifying Detentions of the Person to Resolve Warrant, Grounds, and Search Issues, 17 U.Mich.J.L.Ref. 417, 417-438 (1984); McGinley, Characterizing Police Encounters Under the Fourth Amendment: Inquiry, Stop, or Arrest?, 10 Search and Seizure L.Rep. 157, 157-164 (1983).

A “mere encounter” (or request for information) need not be supported by any level of suspicion, but it carries no official compulsion to stop or to respond. See Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). An “investigative detention” must be supported by reasonable suspicion; it subjects the suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of arrest. See Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1884); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A “custodial detention” must be supported by probable cause; it is deemed to arise when the conditions and/or duration of an investigating detention become so coercive as to be the functional equivalent of arrest. See Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). Formal arrest requires probable cause, and needs no further definition.

B.

Under Pa.R.Crim.P. 130(a), when a suspect is arrested without a warrant, the Commonwealth is required to file a complaint and bring the suspect before an issuing authority for a prompt arraignment “without unnecessary delay.” Case law clearly indicates that a primary purpose of the rule was to put a stop to the practice of taking a suspect into custody and holding the suspect for a lengthy period of interrogation and/or detention in a coercive environment before presenting the suspect for arraignment. See Commonwealth v. Duncan, supra, 514 Pa. at 404, 525 A.2d at 1180-81; see also Commonwealth v. Eaddy, 472 Pa. 409, 372 A.2d 759 (1977). Under Pa.R.Crim.P. 130(b-d) the police are authorized to release persons arrested without warrant and accused of certain crimes, providing a complaint is filed and summons is issued within five days. This narrow exception to the prompt arraignment mandate of Pa.R. Crim.P. 130(a), substitutes prompt release for prompt arraignment and thereby serves the primary purpose of the rule, i.e. freeing the suspect from the coercive atmosphere of a custodial detention.

In view of the purpose which Pa.R.Crim.P. 130 is designed to effectuate, we find that the term “arrest” as used in the context of that rule must be construed to include either formal arrest or its functional equivalent, a custodial detention. We find that the rale cannot reasonably be construed to include investigative detentions. Investigative detentions may be based upon reasonable suspicion; if however, Pa.R.Crim.P. 130(d) was triggered by an investigative detention, the officer initiating such a detention would have to gamble on confirming his suspicions and uncovering enough new evidence to establish probable cause, or having the suspect discharged or evidence suppressed because probable cause was not established to permit the filihg of a complaint within five days. Pa.R. Crim.P. 134(a)(2) and (b)(1). Also significant in our determination that an investigative detention does not trigger the five day rule of Pa.R.Crim.P. 130(d), is the fact that, by definition, investigative detentions are free of the coercive aspects of custodial detentions and formal arrest, against which Pa.R.Crim.P. 130 is directed.

Consequently, we find that the dispositive issue in the instant case is whether appellee was subjected to an investigative detention or a custodial detention. In Commonwealth v. Duncan, supra, our Supreme Court explained:

Appellant first contends that the finding that Appellee was under arrest at the time of his freely volunteered statement is not supported by the record and that ‘at most’ Appellee was detained for a brief investigatory stop. It is Appellant’s position that at the moment the Appellee made his unsolicited confession he had not been taken into custody so as to effectuate an arrest. Appellant also correctly notes, that if the Appellee was not under arrest at the time of his statement, the rule of Davenport is not applicable to this case.
Appellee, on the other hand, contends that the police had exercised control over his freedom from the moment of the initial stop and that he was not free to go at any time. This Court has utilized the following test for determining whether an arrest has occurred:
We have defined an arrest as any act that indicates an intention to take the person into custody and subjects him to the actual control and mil of the person making the arrest.
Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982), citing Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963). See also Commonwealth v. Haggerty, 495 Pa. 612, 435 A.2d 174 (1981), and Commonwealth v. Nelson, 488 Pa. 148, 411 A.2d 740 (1980). An arrest may thus be effectuated without the actual use of force and without a formal statement of arrest. Commonwealth v. Daniels, 455 Pa. 552, 317 A.2d 237 (1974).
The test is an objective one, i.e., viewed in the light of the reasonable impression conveyed to the person subjected to the seizure rather than the strictly subjective view of the officers or the persons being seized.
Commonwealth v. Haggerty, supra, 495 Pa. at 615, 435 A.2d at 175, citing Commonwealth v. Richards, 458 Pa. 455, 327 A.2d 63 (1974). We have also held that a police officer’s subjective view that a defendant was not free to leave is of no moment absent an act indicating an intention to take the person into custody. Commonwealth v. Holmes, 482 Pa. 97, 393 A.2d 397 (1978).

514 Pa. at 400, 525 A.2d at 1179. (Emphasis added). In both Duncan and Lovette, our Supreme Court explained that whether an encounter is to be deemed “custodial” must be determined with reference to the totality of the circumstances. Commonwealth v. Duncan, supra, 514 Pa. at 402, 525 A.2d at 1180; Commonwealth v. Lovette, supra, 498 Pa. at 672, 450 A.2d at 978.

C.

The trial court concluded that appellee was arrested on the night of the accident because: appellee was asked to remain at the scene of the accident during the investigating officer’s initial two hour investigation; appellee was then asked to submit to blood alcohol tests which involved an additional period of detention of one and one-half hours; and, appellee was given Miranda warnings at the hospital prior to taking the blood test. See Trial Court Opinion at 4. The trial court’s focus was directed to the issue of whether appellee reasonably believed that he was not free to leave during these periods of detention; as will be seen infra, this was not the proper focus for resolution of the issue of whether an arrest had occurred for the purposes of Pa.R. Crim.P. 130.

1.

In Commonwealth v. Bruder, 365 Pa.Super. 106, 528 A.2d 1385 (1987), a divided panel of this Court stated that a “custodial interrogation” occurs whenever “the individual being interrogated reasonably believes his freedom of action is being restricted.” 365 Pa.Superior Ct. at 111, 528 A.2d at 1387, quoting Commonwealth v. Meyer, 488 Pa. 297, 307, 412 A.2d 517, 521 (1980). However, standing by itself this dictum is somewhat misleading.

It is well settled that a custodial detention involves something more than mere exercise of control over the suspect’s freedom of movement. While a suspect may certainly walk away from a mere encounter with a police officer, every traffic stop and every Terry stop involves a stop and a period of time during which the suspect is not free to leave but is subject to the control of the police officer detaining him. See Berkemer v. McCarty, supra; Commonwealth v. White, supra, 358 Pa.Superior Ct. at 131, 516 A.2d at 1217, citing Commonwealth v. Jones, 474 Pa. 364, 378 A.2d 835 (1977), cert. denied 435 U.S. 947, 98 S.Ct. 1533, 55 L.Ed.2d 546 (1978).

The Supreme Court explained in Berkemer that:

It must be acknowledged at the outset that a traffic stop significantly curtails the freedom of action’ of the driver and the passengers, if any, of the detained vehicle.
# # * * # #
However, we decline to accord talismanic power to the phrase in the Miranda opinion emphasized by respondent. Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated. Thus, we must determine whether a traffic stop exerts upon a detained person pressures that sufficiently impair his free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights.

468 U.S. at 436-37, 104 S.Ct. at 3148-49, 82 L.Ed.2d at 332-33. (Emphasis added).

The Bruder majority characterized the Berkemer analysis and holding as follows:

In Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), the United States Supreme Court ruled that a motorist was not in custody when he was stopped by a police officer who asked ‘a modest number of questions and requested him to perform a simple balancing test visible to passing motorists.’ 468 U.S. at 442, 104 S.Ct. at 3151. As in the case at bar, the driver in McCarty was stopped after being suspected of driving under the influence of alcohol, admitted that he had had a few drinks, and failed a balancing test before being advised of his Miranda rights. The Court in McCarty, however, refused to adopt a bright line test which would have definitely answered the question of whether Miranda applies to all traffic stops or whether a suspect need be advised of his rights only when he is formally placed under arrest. 468 U.S. at 441, 104 S.Ct. at 3151. Thus, we are afforded a measure of flexibility in deciding exactly when a suspect has been taken into custody.

365 Pa.Superior Ct. at 111, 528 A.2d at 1387. (Emphasis added). While the Berkemer holding is certainly flexible, we are not without guidance.

The actual holding in Berkemer was as follows:

[T]he usual traffic stop is more analogous to a so-called ‘Terry stop, see Terry v. Ohio, 392 U.S. 1, 20 L Ed 2d 889, 88 S Ct 1868 (1968), than to a formal arrest. Under the Fourth Amendment, we have held, a policeman who lacks probable cause but whose ‘observations lead him reasonably to suspect’ that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to ‘investigate the circumstances that provoke suspicion.’ United States v. Brignoni-Ponce, 422 US 873, 881, 45 L Ed 2d 607, 95 S Ct 2574 [2580] (1975). ‘[T]he stop and inquiry must be “reasonably related in scope to the justification for their initiation.” ’ Ibid, (quoting Terry v. Ohio, supra, at 29, 20 L Ed 2d at 889, 88 S Ct at 1868). Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions. But the detainee is not obliged to respond. And, unless the detainee’s answers provide the officer with probable cause to arrest him, he must then be released. The comparatively nonthreatening character of detentions of this sort explains the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda. The similarly noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not ‘in custody’ for the purposes of Miranda.
Respondent contends that to ‘exempt’ traffic stops from the coverage of Miranda will open the way to widespread abuse. Policemen will simply delay formally arresting detained motorists, and will subject them to sustained and intimidating interrogation at the scene of their initial detention.
* * # * * *
We are confident that the state of affairs projected by respondent will not come to pass. It is settled that the safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of action is curtailed to a ‘degree associated with formal arrest.’ California v. Beheler, 463 US 1121, 1125, 77 L Ed 2d 1275, 103 S Ct 3517 (1983) (per curiam). If a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him ‘in custody’ for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda. See Oregon v. Mathiason, 429 US 492, 495, 50 L Ed 2d 714, 97 S Ct 711 (1977) (per curiam).

468 U.S. at 439-40, 104 S.Ct. at 3150, 82 L.Ed.2d at 334-35. The clear import of Berkemer is that traffic stops, like Terry stops, constitute investigative rather than custodial detentions, unless under the totality of circumstances the conditions and duration of the detention become the functional equivalent of an arrest.

This characterization of the holding in Berkemer is consistent with recent decisions of this Court which have examined the totality of circumstances rather than focusing on a single factor in determining whether a challenged encounter with police was investigative or custodial. See e.g. Commonwealth v. Fento, 363 Pa.Super. 488, 498-99, 526 A.2d 784, 786-89 (1987); Commonwealth v. Grove, 363 Pa.Super. 328, 340-41 & n. 7, 526 A.2d 369, 375-76 & n. 7 (1987); Commonwealth v. White, supra, 358 Pa.Superior Ct. at 130, 516 A.2d at 1217. Among the factors generally considered in determining whether a detention is investigative or custodial are: the basis for the detention (the crime suspected and the grounds for suspicion); the duration of the detention; the location of the detention (public or private); whether the suspect was transported against his will (how far, why); the method of detention; the show, threat, or use of force; and, the investigative methods used to confirm or dispel suspicions. See generally 3 LaFave, Search and Seizure, supra; LaFave, Classifying Detentions, supra; NcGinley, Characterizing Police Encounters, supra.

2.

The facts, as found by the trial court and supplemented by this Court, supra, establish that from approximately 9 p.m. to 11 p.m. appellee was detained at the scene of a fatal automobile accident. Concededly, the two hour detention was considerably longer than the brief detentions involved in either Terry or Berkemer. However, while the duration of the detention is a highly relevant factor, it is important to recall that:

In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the [suspect]. A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second guessing.

Commonwealth v. White, supra, 358 Pa.Superior Ct. at 128, 516 A.2d at 1215, quoting Commonwealth v. Mayo, 344 Pa.Super. 336, 341-42, 496 A.2d 824, 826 (1985), quoting United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575-76, 84 L.Ed.2d 605, 615-16 (1985); accord United States v. Montoya De Hernandez, 473 U.S. 531, 542, 105 S.Ct. 3304, 3311, 87 L.Ed.2d 381, 392 (1985) (applying Sharpe; again rejecting per se time limits; and, holding that a 16 hour detention was reasonable under the circumstances of that case).

We find that the initial two hour detention was reasonable under the facts of the instant case. The detention occurred at the scene of a fatal automobile accident. Following his initial encounter with appellee, the investigating officer knew that appellee was one of the drivers involved in the accident, and that appellee appeared glassy-eyed and had an odor of alcohol about his person. While these facts clearly gave rise to reasonable suspicion that appellee may have committed a traffic offense, i.e. homicide by vehicle while driving under the influence, they did not establish probable cause for arrest. Appellee was asked to remain. Appellee agreed to remain, and so the investigating officer went back to his initial accident investigation. There is no indication in the record that the investigating officer was less than diligent in pursuing the initial accident investigation or that he delayed its completion in any way. Moreover, it is important to note that both the Commonwealth and appellee had a strong interest in having a prompt, thorough accident investigation completed. Any delay on the part of the investigating officer in conducting the on-site investigation could have resulted in the loss of eye-witnesses, valuable physical evidence, or measurements which could either confirm or dispel suspicions that appellee was criminally responsible for the fatal accident. Moreover, the conditions of the detention also demonstrate its investigative rather than custodial nature. Appellee was “asked” to remain, and the only other restraint imposed was that the officer looked over at appellee occasionally. No prolonged interrogation took place. Appellee was not told he was under arrest or even suspected of a particular crime. Appellee was not transported anywhere against his will; nor is there any indication in the record that he was subjected to a show, threat, or use of force.

Following the completion of the initial accident investigation, the investigating officer asked appellee if he would submit to a breathalyzer test. Appellee responded that he had no objections to taking a breathalyzer test. Accordingly, appellee was transported to the police barracks in order for the test to be administered. He was not subjected to undue restraints {e.g. handcuffs), and was not subjected to interrogation during this detention. Rather, appellee was merely escorted to a police testing facility in order to obtain highly evanescent evidence which was needed to confirm or dispel reasonable suspicions that appellee may have been criminally responsible for the fatal automobile accident.

We note that while a lawful arrest is ordinarily required before a suspect may be transported against his will (see Commonwealth v. Lovette, supra; Commonwealth v. Quarles, supra), such an arrest is unnecessary when the suspect actually, as opposed to impliedly (75 Pa.C.S.A. § 1547), consents to being transported. See Commonwealth v. Kelly, 235 Pa.Super. 299, 301-04, 341 A.2d 141, 143-44 (1975); see also Commonwealth v. Ebert, 31 Pa.Cmwlth. 82, 86-88, 375 A.2d 837, 839 (1977). There is no evidence in the present record to indicate that appellee’s consent was coerced. See Commonwealth v. Kelly, supra, 341 A.2d at 143-44 (no indication in the record that the suspect’s consent to take a breathalyzer was coerced; coercion will not be implied); see also Commonwealth v. Watkins, 236 Pa.Super. 397, 398, 344 A.2d 678, 679 (1975) (same). Consistent with other cases involving the consensual transportation of a suspect for questioning, testing, or confirming of answers given to allay suspicions, we find that the detention arising from the consensual transportation of appellee to the police barracks for a breathalyzer test did not constitute a custodial detention or arrest. Cf. Commonweath v. Haggerty, 495 Pa. 612, 435 A.2d 174 (1981) (suspect consented to being transported to the police barracks to answer questions, then to take a polygraph test; detention did not become custodial until after admissions of guilt were made during polygraph test); Commonwealth v. Petrino, 332 Pa.Super. 13, 480 A.2d 1160 (1984) (suspect consented to be transported to hotel where his identity could be confirmed; detention did not become custodial until evidence establishing probable cause was discovered at the hotel); Commonwealth v. Benson, 317 Pa.Super. 139, 463 A.2d 1123 (1983) (suspect consented to being transported to police station for questioning; detention did not become custodial until admissions of guilt were made).

When the police determined that the breathalyzer results were invalid, the investigating officer requested that appellee accompany him to the hospital and submit to a blood test; appellee consented. At the hospital necessary forms were filled out and appellee again consented to the testing. (N.T. 9/29/86 at 10). Appellee was permitted to call his wife in order for her to drive him home after the blood test was completed. After appellee’s wife’s arrival and before the test was taken, appellee was given Miranda warnings. Appellee was, in fact, permitted to leave with his wife after the blood test was completed.

Taking the three and one half hour detention as a whole, we find that appellee’s detention was investigative rather than custodial. The interests of appellee and the Commonwealth both required prompt action in a swiftly developing situation in order to preserve vital evidence which could either confirm or dispel reasonable suspicions that appellee may have been criminally responsible for the fatal automobile accident in which appellee was involved. Given the gravity of the situation, the three and one half hour detention does not seem excessive, especially in view of the complete absence of unnecessary restraints or coercive interrogation and the presence of cooperation and consent by appellee throughout. Accordingly, we find that appellee was not “arrested” for the purposes of Pa.R.Crim.P. 130 on the night of the accident. Therefore, the trial court erred in concluding that Pa.R.Crim.P. 130(d) applied and had been violated.

II.

The Commonwealth also contends that assuming, arguendo, Pa.R.Crim.P. 130(d) applied, the trial court erred in its calculation of the five day run date by failing to exclude weekend days in accordance with 1 Pa.C.S.A. § 1908. At the suppression hearing, the investigating officer testified:

Q. But in any case, you waited until the 19th to file the charges, right?
A. Yes, sir.
Q. Why did you pick the 19th?
A. I wanted to file within the five days as required. It’s the interpretation — my interpretation that week days are the — are considered within the five days; however, if the 5th day rests on a weekend or holiday, as I said this is my interpretation, that day does not count and carries over to the next day. However, I cannot understand why that would be prejudicial.

(N.T. 9/29/86 at 26). Had the trial court adopted this construction of the rule, the complaint would have been deemed timely. It did not; and so, the Commonwealth urges this construction of the rule as grounds for reversal on appeal. Appellee responds that this issue has been waived because the Commonwealth did not address this alternate theory in its brief to the trial court.

Because of our disposition of the Commonwealth’s first contention, we need not resolve the waiver issue. We note in passing, however, that the investigating officer’s construction of Pa.R.Crim.P. 130(d) is consistent with the construction given the rule by this Court in Commonwealth v. Oeler, 357 Pa.Super. 281, 515 A.2d 977 (1986), which was subsequently approved and applied in Commonwealth v. Revtai, 516 Pa. 53, 73 & n. 9, 532 A.2d 1, 10 & n. 9 (1987).

CONCLUSION

Based on the foregoing, the order of the trial court is vacated, the charges against appellee are reinstated, and the case is remanded for further proceedings not inconsistent with this opinion. Jurisdiction of this Court is relinquished.

WIEAND and POPOVICH, JJ., concur in the result.

      . We note, however, that if it were properly preserved, it would likewise compel reinstatement of the charges against appellee. (Discussed briefly, infra ).

      . Although the issue is not raised by the Commonwealth in this appeal, we note that in the wake of Revtai, it is uncertain whether discharge is an appropriate remedy even when Pa.R.Crim.P. 130(d) has been violated. We note further that when Pa.R.Crim.P. 130 has been violated and prejudice has been established, the appropriate remedy is ordinarily the suppression of evidence derived as the result of the violation, and not dismissal of the charges with prejudice. Cf. Commonwealth v. Johnson, 291 Pa.Super. 566, 436 A.2d 645 (1981); Commonwealth v. Beatty, 281 Pa.Super. 85, 421 A.2d 1159 (1980).

      . We note that the suppression hearing transcript contains no testimony whatsoever concerning the police officer’s determination that appellee had caused the accident by crossing a double yellow line on the highway or the alleged admission by appellee that he had consumed "a few beers” before the accident. Rather, these "facts” are gleaned from the affidavit of probable cause attached to the complaint filed May 19, 1986. These assertions were not renewed or supported at the suppression hearing. More importantly, there is no evidence whatsoever to support a conclusion that these “facts” were known to appellee or the investigating officer any time during appellee’s detention on the night of the accident. Indeed, there is no indication in the affidavit of the time or day when these facts became known to the officer.

      . Although the officer indicated that he spoke with appellee two additional times during this period, to ask appellee if he was “okay” (N.T. 9/29/86 at 6-7), appellee testified he did not remember the officer making any such inquiries. (N.T. 9/29/86 at 30). Neither version affects our disposition of this appeal.

      . It should be noted that Commonwealth v. Meyer, supra, involved facts which would clearly have met the Berkemer standard. In Meyer, an obviously intoxicated driver who was involved in a one car accident was directed by a local police officer to remain at the scene of the accident until the state police arrived; probable cause to arrest rather than reasonable suspicion existed at the time of the initial detention; no investigation to quickly confirm or dispel “reasonable suspicions” was conducted during the half hour detention; and, the driver was directed to sit in the back of the police squad car for part of the half hour detention. Under those circumstances, custody, as the Berkemer decision construes the term, was established.

      . We note that there is no indication in the record that any additional indicia of intoxication were observed by the officer. See Commonwealth v. Leninsky, 360 Pa.Super. 49, 59, 519 A.2d 984, 990 n. 6 (1986) (noting nine common signs or symptoms of alcohol intoxication). Even assuming that the alleged admission of appellee’s consumption of a “few beers” was available to the officer at this juncture, we would not find sufficient evidence to establish probable cause to believe appellee was intoxicated. See generally Harvey v. Doliner, 399 Pa. 356, 360-63, 160 A.2d 562, 565-66 (1960) (per Musmanno, J.; discussing testimony regarding alcohol consumption and intoxication).

      . See 75 Pa.C.S.A. § 1547(a)(2); see also Commonwealth v. Pelkey, 349 Pa.Super. 373, 503 A.2d 414 (1985).

      . These cases should not be construed, however, to suggest that the fact of arrest depends upon the existence of probable cause; assuredly it does not. Rather, these cases stand for the limited proposition that a consensual or otherwise reasonable investigative detention becomes a custodial detention when admissions are made or evidence is discovered which clearly establish probable cause and which renders formal arrest both imminent and inevitable.

      . We note that the mere giving of Miranda warnings does not render an investigative detention custodial. See Commonwealth v. Haggerty, supra, 435 A.2d at 175. This is especially true when, as in the instant case, appellee has conceded that after he was permitted to call his wife (before the warnings were given), he knew he was going to be permitted to go home after the blood test was taken.

      . We also note that while the blood test preserved the highly evanescent evidence, the results were not available that evening to confirm or dispel the investigating officer’s reasonable suspicions; accordingly, the officer elected to wait until the results of the blood test were available before deciding whether to file charges against appellee. Under the circumstances, this decision was reasonable. Indeed, the present record does not disclose probable cause for arrest at that juncture; and therefore, no valid arrest could have been made.