dissenting:
I respectfully dissent from the decision of the Majority to transfer this case to the Supreme Court of Pennsylvania (Supreme Court) for the reason that I find that the Supreme Court has already decided that in so far as the power to arrest is concerned there is no conflict between Pa.R.Crim.P. 101 (Rule) and the Act of July 20,1974, P.L. 522, No. 177, § 2 amending the Act of April 29, 1959, P.L. 58, § 1204(a); 75 Pa.C.S. § 1204(a) (the Act), and consequently there is no constitutional issue involved in the instant case that has not already been decided by the Supreme Court. Commonwealth v. Levesque, 469 Pa. 118, 364 A.2d 932 (1976). The *333Majority of our own Court concedes that the Supreme Court has held that there is no such inconsistency between the Rule and the Act1 but nevertheless finds that because of this “conflict” an interpretation of Article V, § 10(c) of the Pennsylvania Constitution (the Constitution) is still unresolved.
In Levesque, supra, the Supreme Court determined the facts to be as follows:
“On April 19, 1975, an automobile operated by Robert Levesque struck a parked automobile in the City of Harrisburg. Observers called the Harrisburg Police and, within minutes, an officer of the Harrisburg Police Department responded. The officer initially spoke to two youths who said they saw Levesque’s automobile weave down the street immediately before the collision. The officer then proceeded to speak to Levesque who had stopped his automobile approximately one block away. Levesque, who was standing alongside his vehicle with the ignition and lights off, admitted that he was the operator of the vehicle but denied striking the parked automobile. The officer noticed a strong odor of alcohol on Levesque’s breath. The officer then examined the parked automobile and found a piece of chrome strip matching Levesque’s vehicle attached to the damaged portion of the parked vehicle. The officer then placed Levesque under arrest without a warrant for operating a vehicle while under the influence of intoxicating liquor.1 Levesque was thereupon 1 Driving under the influence of intoxicating liquor is a misdemeanor. See Act of April 29, 1959, P.L. 58, § 1037, 75 P.S. § 1037. taken to City Hall where a written complaint specifying the offense and underlying facts was filed against him and a Mobatt test, which registered 0.213% alcohol in his blood, was administered.”
Levesque appealed the denials of his motions to suppress evidence which he claimed was secured by police “as a result of the unlawful arrest.” The lower court held that the Act was unconstitutional, that it was in conflict with the Rule *334and that the rule prevailed under the Constitution. The Supreme Court reversed, holding that in so far as the power to arrest is concerned, there is no conflict between the Rule and the Act and that the Act is Constitutional.
In the instant case the Majority determines the facts to be as follows:
“On December 30, 1974, at approximately 3:00 a. m., an officer of the Carlisle Police Department came upon the scene of an accident on Interstate 81. An automobile was resting on top of the guard rail that served as a median barrier between the northbound and southbound lanes. A truck driver had stopped and was placing flares to warn other motorists. Appellee was a few feet from the automobile. After satisfying himself that appellee was uninjured, the officer radioed his headquarters to summon the State Police. Apparently the scene of the accident was within their jurisdiction. When two state troopers arrived, the officer told one of them that he had a ‘possible 1037’ (a reference to the section of the Vehicle Code that prohibits driving under the influence of alcohol; . The trooper observed that appellee walked with a staggering gait, was disheveled in appearance, and had a glassy look in his eyes and an odor of alcohol on his breath. After asking for and receiving appellee’s driver’s license and registration card, the trooper asked appellee, ‘What happened?’. In response, appellee made an incriminating statement. Appellee was then placed under arrest by the trooper and was advised of his Miranda rights. After his arrest appellee made other incriminating statements and voluntarily submitted to a breathalyzer test, the results of which were also incriminating.”
Defendant Meyer (before his third trial) filed a motion to suppress his pre-arrest statements to the police because of alleged untimely Miranda warnings and his post-arrest statements and the breathalyzer test because they resulted from an unlawful arrest. We are concerned at this time with only the alleged unlawful arrest.
*335There is no question that the Supreme Court has exclusive jurisdiction in cases where a court of Common Pleas has held an act to be unconstitutional. The Appellate Court Jurisdiction Act of 1970, section 202 provides:
“The Supreme Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in any of the following classes of cases:
(9) Matters where the court of common pleas has held invalid as repugnant to the . . . Constitution of the Commonwealth . . . any act of Assembly of this Commonwealth . . . .”
In Levesque the Supreme Court exercised its jurisdiction and not only held the Act constitutional but also held that there is no conflict between the Act and the Constitution. We have instantly the identical legal situation.2 Once it has been determined that in this situation there is no constitutional issue we have jurisdiction and the first obligation to decide the matter. The issues in this case are two, (1) the propriety of the arrest and (2) the timeliness of the Miranda warnings. I believe we should proceed to make the required decisions and should not transfer the case to the Supreme Court.
WATKINS, President Judge, and PRICE, J., join in this dissenting opinion.. Footnote 6 of the Majority Opinion.
. The court below did not actually write that the Act is unconstitutional. President Judge SHUGHART held that the arrest was unlawful under Rule 101. He gave as his reason his reliance on the conclusion of Judge WEIDNER in an earlier opinion in this case. Judge WEIDNER in his earlier opinion relied on a still earlier opinion of President Judge SHUGHART which is reported in Commonwealth v. Smith, 26 Cumb.L.J. 134 (C.P.1975). President Judge SHUGHART in Smith relied on Commonwealth v. Marcozzi, 15 Lebanon L.J. 145 (1975) in which Judge GATES found the Act unconstitutional.