*519Concurring Opinion by
Spaeth, J.:I believe that the evidence was sufficient to support appellant’s conviction of drunken driving and therefore dissent from Judge Cercone’s opinion, but I agree that the motion in arrest of judgment should have been granted.
To establish the offense of drunken driving the Commonwealth must prove (1) that the defendant was operating a motor vehicle (2) while under the influence of intoxicating liquors. Act of April 29, 1959, P. L. 58, §1037, 75 P.S. §1037. Appellant concedes that when he was arrested he was drunk; his argument is that there was not sufficient evidence to prove that he was driving while drunk.
At trial, the Commonwealth presented the following evidence, which is stated in greater detail in Judge Cer-conb’s opinion: Appellant owned a 1959 Cadillac sedan that struck a mailbox in front of a house in Monroe Township, Cumberland County. A resident of a house nearby, Clair Gochenauer, saw appellant a few moments after the accident sitting in the driver’s seat; he saw no one else. Appellant at some point after the accident told a State Trooper that he had been driving the car just before the accident.
By way of defense, appellant and a witness, Barry Shaffer, testified that Shaffer was the driver at the time of the accident. Appellant said that when Shaffer fled, he moved into the driver’s seat to turn the lights out, and that this accounted for Gochenauer’s testimony.
It may be granted that the Commonwealth’s case was not imposing, and that the jury might have acquitted appellant. However, the jury did not, and on review we should not give appellant’s evidence undue consideration. The jury was free to reject all of appellant’s and Shaffer’s testimony, and we cannot second guess the jury. Given the guilty verdict, we must con*520sider the evidence in the light most favorable to the Commonwealth, Commonwealth v. Young, 446 Pa. 122, 285 A. 2d 499 (1971), and accept “as true all the evidence upon which, if believed, the jury could have properly based its verdict.” Commonwealth v. Gockley, 411 Pa. 437, 440, 192 A. 2d 693, 695 (1963).
Nor should too much be made of the fact that no one testified that he saw appellant driving the car before it came to a stop after striking the mailbox. As a general rule, circumstantial evidence will support a conviction. Although Judge Cercone’s opinion acknowledges this rule, it seems to except drunken driving cases by requiring direct evidence that the defendant was driving.
The courts of numerous jurisdictions have wrestled with the question of the sufficiency of circumstantial evidence in drunken driving cases. The general rule is that “[djirect evidence that the defendant was observed in the act of operating the motor vehicle is not an indispensable requisite to prove his operation.” State v. Costello, 110 N.H. 182, 183, 263 A. 2d 671, 672 (1970). See also People v. Schulewitz, 87 Ill. App. 2d 331, 231 N.E. 2d 678 (1967); Stephens v. State, 127 Ga. App. 416, 193 S.E. 2d 870 (1972) (court retreats from holdings that precluded proof of driving by circumstantial evidence).
The Pennsylvania cases are in accord. Neither Commonwealth v. Marks, 164 Pa. Superior Ct. 280, 64 A. 2d 207 (1949), nor Commonwealth v. Kerns, 124 Pa. Superior Ct. 61, 188 A. 81 (1936), holds that to make out the charge of drunken driving there must be testimony by someone that he saw the defendant driving. It happened in each of those cases that there were eyewitnesses, and in passing upon the sufficiency of the evidence this court considered that fact. The critical case is Commonwealth v. Walker, 165 Pa. Superior Ct. 617, 70 A. 2d 435 (1950). There the evidence was that *521the defendant’s car had crashed through a guardrail and plunged down a twenty foot embankment, with the defendant trapped inside. It was apparent from the circumstances that the defendant must have been the driver. Accordingly, although no one testified to having seen the defendant drive, this court upheld his conviction of drunken driving. (It is true that on appeal counsel for the defendant conceded that the circumstantial evidence showed that the defendant had been driving, but this court did not rest its decision on that concession, instead emphasizing that the circumstantial evidence was “abundant 'proof that the car had . . . been operated on that highway’ by the defendant. Facts often speak louder than words.” Id. at 621, 70 A. 2d at 437.)
It should be noted in this connection that the Commonwealth need not totally exclude the possibility that another person was driving, as it was able to do in Walker. This court has said: “Although earlier decisions enunciated the rule that to warrant a conviction on circumstantial evidence alone such evidence must exclude to a moral certainty every hypothesis but that of guilt, or must be inconsistent and irreconcilable with any reasonable hypothesis of the accused’s innocence, the more recent decisions state the rule to be that to warrant a conviction on circumstantial evidence the facts and circumstances established by such evidence must be of such a character as to produce a moral certainty beyond a reasonable doubt, but need not be absolutely incompatible with innocence.” Commonwealth v. Feinberg, 211 Pa. Superior Ct. 100, 113, 234 A. 2d 913, 919 (1967).
When this principle is applied to the present case, it will be seen that the evidence produced by the Commonwealth was sufficient to support the verdict. The jury could have found that Gochenauer, the Commonwealth’s witness who lived in the vicinity of the acci*522dent, was on the scene fast enough, and in a position to see enough to exclude the possibility that Shaffer was driving and immediately fled from the car. The jury could have found that appellant was sober enough to be accurate when he told the Trooper that he had been driving, and that the Trooper was truthful when he testified to hearing this admission.
The difficulty with the case, in my view, does not lie in deciding upon the sufficiency of the evidence but rather arises from the fact that appellant’s counsel made no timely objection to the introduction of appellant’s damaging admission, which the Trooper said was made following appellant’s warrantless arrest for drunken driving.*
Operating a motor vehicle under the influence of intoxicating liquors is a misdemeanor. A warrantless arrest for a misdemeanor can only be made when the officer has probable cause to believe that it is being committed in his presence. Pa. R. C. P. 102. Consequently, where the officer does not see someone “[operating a motor vehicle”, he cannot make a warrantless arrest for drunken driving. Commonwealth v. Brown, 225 Pa. Superior Ct. 289, 302 A. 2d 475 (1973); Commonwealth v. Reeves, 223 Pa. Superior Ct. 51, 297 A. 2d 142 (1972).** Thus appellant’s arrest was illegal, *523and Ms admission following the arrest could on timely objection have been excluded as its fruit. See Commonwealth v. Pincavitch, 206 Pa. Superior Ct. 539, 214 A. 2d 280 (1965).
As mentioned, no objection to the introduction of the admission was made. Normally this would preclude review. Here, however, the admission was the heart of the Commonwealth’s case. Without it the evidence would have been insufficient to support the verdict. As there was no strategic advantage to be gained by failing to object, it cannot be said that counsel’s omission “had some reasonable basis designed to effectuate his client’s interest.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A. 2d 349, 352 (1967). Thus the introduction of the admission constituted “basic and fundamental error”. Commonwealth v. Jennings, 442 Pa. 18, 274 A. 2d 767 (1971) ; Commonwealth v. Williams, 432 Pa. 557, 248 A. 2d 301 (1968). Since it is clear that without the admission the Commonwealth cannot support the charge, I agree that we should reverse and order appellant discharged.
In bis pro se brief, appellant states that at the first trial (when the jury disagreed) the Trooper testified that the admission was made before the arrest and during investigative questioning.
This rule leaves much to be desired, for it may require an officer to choose between making an illegal arrest and leaving a drunk driver on the road where he is a menace both to himself and others. A possible solution to this dilemma may be found in §5505 of the New Crimes Code, 18 Pa. S. §101 et seq. (1973), which reads as follows: “A person is guilty of a summary offense if he appears in any public place manifestly under the influence of alcohol to the degree that he may endanger himself or other persons or property, or annoy persons in his vicinity.” 18 Pa. S. §5505. It would seem that a drunk driver may be arrested for breach of §5505 with*523out a search warrant. Pa. R. Crim. P. 102. Having been thus legally detained, his subequent statements would be admissible. Also, he could be lawfully taken to a facility where his intoxication could be scientifically ascertained, and, most importantly, he would no longer be a menace to himself and others. Tt is not suggested that §5505 be used as a device to herd citizens to police stations in order to conduct inquiries that extend beyond their state of intoxication, but no reason appears why it should not apply to the drunk driver who has been in an accident or has committed the offense of drunken driving in the presence of witnesses on whom the officer has reason to rely.