Com. v. Gallagher

• Decision Date: 28 March 2006
• Citation: 896 A.2d 583
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Richard GALLAGHER, Appellant.
• Court: Pennsylvania Superior Court

896 A.2d 583

COMMONWEALTH of Pennsylvania, Appellee v. Richard GALLAGHER, Appellant.

Superior Court of Pennsylvania.

Argued October 5, 2005.

Filed March 28, 2006.

Garrett A. Taylor, Erie, for appellant.

Paul A. Barkus, Assistant District Attorney, Butler, for Com., appellee.

BEFORE: HUDOCK, PANELLA and TAMILIA, JJ.

OPINION BY HUDOCK, J.:

¶ 1 This is an appeal from the judgment of sentence imposed upon Appellant after a jury convicted him of fleeing or attempting to elude police and possession of a controlled substance (marijuana).¹ He was sentenced to an aggregate term of thirteen to thirty-six months of imprisonment. This appeal followed. Both Appellant and the trial court have complied with Pa. R.A.P.1925. We affirm.

¶ 2 Appellant raises the following issue on appeal:

WHETHER [APPELLANT'S] MOTION TO SUPPRESS EVIDENCE SHOULD HAVE BEEN GRANTED WHERE THE EVIDENCE IS UNCONTRADICTED THAT PENNSYLVANIA STATE POLICE DID NOT COMPLY WITH OHIO REVISED CODE §§ AND 2935.30 AND 2935.31 FOLLOWING THE EXTRA-TERRITORIAL ARREST OF APPELLANT IN THE STATE OF OHIO?

Appellant's Brief at 6.

¶ 3 Our standard of review is well settled:

When reviewing an order denying a motion to suppress evidence, we must determine whether the evidence of record supports the factual findings of the trial court. In making this determination, this [C]ourt may only consider the Commonwealth's evidence and the defendant's evidence that remains uncontradicted. We view the Commonwealth's evidence, not as a layperson, but through the eyes of a trained police officer. We do not review the evidence piecemeal, but consider the totality of the circumstances in assessing whether probable cause existed. Additionally, it is exclusively within the province of the trial court to determine the credibility of the witnesses and the weight to be accorded their testimony. If the evidence supports the findings of the trial court, those findings bind us and we may reverse only if the suppression court drew erroneous legal conclusions from the evidence.

Commonwealth v. Nobalez, 805 A.2d 598, 600 (Pa.Super.2002) (citations omitted). As this Court has often reiterated: "It is within the suppression court's sole province as factfinder to pass on the credibility of witnesses and the weight to be given their testimony." Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa.Super.2003) (citation omitted).

¶ 4 After retaining new counsel, Appellant was permitted to file an omnibus pre-trial motion in which he sought to suppress evidence nunc pro tunc, and an evidentiary hearing was held on November 15, 2004. The Commonwealth presented the testimony of two Pennsylvania State Police officers, Corporal Robert J. Krol and Trooper Mark Temel, as well as the testimony of Deputy Mark Allen, a deputy sheriff with the Sheriff's Office for Ashtabula County, Ohio. Appellant did not present any evidence. The suppression court made the following factual findings based upon the testimony presented by the Commonwealth:

On September 30, 2003[,] at approximately 1:40 in the morning, [Corporal] Robert Krol and [Trooper] Shawn Massey, were on routine patrol, in a marked state police vehicle, traveling east on Shadeland Road, Beaver Township, in Crawford County. Beaver Township is the northwestern most township in Crawford County, bordered on the west by the state of Ohio. At that time, Corporal Krol and Trooper Massey observed a Chevrolet S-10 pick-up truck, bearing Ohio registration plates which was parked at least halfway in the westbound lane of traffic, pointing in a westerly direction on Shadeland Road. The location of the truck was approximately one to one and a half miles east of Beaver Center Road. The officers decided to investigate. Corporal Krol approached the pick-up truck, observed that the vehicle was unoccupied and then noticed, upon shining his flashlight upon the bed of the vehicle, that there was a silver colored tarp covering the contents of the bed of the vehicle, with what appeared to be "several" marijuana plants sticking out from under the tarp and a "lot of leaves [sic]." [Corporal] Krol, having been trained to recognize marijuana, testified at the suppression hearing that he formed the opinion that the vegetable material he observed did appear to him to be marijuana, and moreover, he was impressed with the odor emanating from the vehicle that convinced him that there were marijuana plants beneath the tarp. He was so startled by this surprising discovery in a desolate part of Crawford County in the middle of the night that he was concerned for his own protection, fearing that he was a target who might be shot at from the wood line, so he quickly returned to his police cruiser to radio his discovery.

After making the foregoing observations concerning the suspected marijuana, Corporal Krol transmitted the make, model, color and Ohio registration information concerning the vehicle to other patrol vehicles in the area. Among the [troopers] who received the dispatch were Troopers Mark Temel and Mike Fennell.

The area in question is a rural area, which is sparsely populated. Krol and Massey decided to position their cruiser approximately three-tenths of a mile from the location of the pick-up truck and to commence surveillance. Approximately 12 minutes later, at or about 1:52 a.m., Corporal Krol observed a light shining north across the road near the area of the vehicle, with the light coming from the south side. Shortly thereafter, Corporal Krol observed the brake lights on the pick-up truck coming on, with the back up lights then flashing. The vehicle then proceeded west on Shadeland Road. The officers decided to follow the vehicle; having concluded that probable cause existed to believe that the person operating the vehicle was in possession of recently harvested marijuana. The manufacture of marijuana is a felony offense. 35 P.S. 780-113(a)(30).

Troopers Temel and Fennell were in the vicinity of Beaver Center Road about the time that Krol and Massey began to follow the vehicle as it traveled west on Shadeland Road. Troopers Temel and Fennell gave chase, behind [Corporal] Krol and [Trooper] Massey as the pick-up truck was traveling west on Shadeland Road, going through the intersection of Shadeland Road and Beaver Center Road without having first stopped at the stop sign. While pursuing the vehicle, both patrol cars had their emergency lights operating and both observed that the suspect was operating the pick-up truck at a high rate of speed. As the pick-up truck was observed coming upon the intersection of Stateline Road, the vehicle then turned south onto Stateline Road. At this intersection, the pick-up truck slowed down briefly and a passenger, later identified as Jenny Maria Ferguson, got out of the vehicle. Corporal Krol stopped his cruiser at that location and Trooper Massey got out of the police cruiser and then apprehended Ms. Ferguson.

Meanwhile, the pick-up truck continued south on Stateline Road, then west on State Route 167 into Ohio, at which time Troopers Temel and Fennell were following [the pick-up], with Corporal Krol now following Temel and Fennell. Trooper Temel made a point of telling the dispatcher to keep Ashtabula County, Ohio law enforcement authorities aware of what was taking place from the moment he started his pursuit in the vicinity of Beaver Center Road and Shadeland Road. With Trooper Temel now the lead vehicle, and knowing that the [pick-up] was endeavoring to cross the state line, Trooper Temel made a point of keeping Ohio authorities informed of developments.

[The pick-up] continued south on Pennline Road, then west on U.S. Highway 6, approximately one-tenth of a mile after which [Appellant, an Ohio resident,] then jumped out of his moving [pick-up] truck and fled the scene while his truck then went into a ditch. All along the journey of slightly less than 11 miles, [Appellant] was traveling at an excessive rate of speed, going as high as 80 to 90 miles per hour on rural, sometimes gravel based roads, not showing the slightest inclination to voluntarily give up the chase.

At that point, [Appellant] was [apprehended and] placed into custody. Within two to three minutes, Deputy Sheriff Mark Allen of the Ashtabula County Sheriff's Department arrived, and he, too, took [Appellant] into custody[.] Deputy Allen is a canine handler for the Sheriff's Department. He had been in continuous radio contact with Trooper Temel and Corporal Krol throughout the episode, actually talking with them at various times during the evening and fully aware that [Appellant] was suspected of being in possession of a substantial quantity of marijuana plants and that he had led the Pennsylvania State Police on a high speed chase to avoid apprehension. As a canine handler, he was specially trained in the identification of illegal drugs and testified that he personally observed a large amount of marijuana plants in [Appellant's pick-up] truck, for which [Appellant] was placed under arrest for violating Ohio's laws against drug trafficking and illegal possession.

[Appellant] was held in Trooper Temel's police cruiser, read his Miranda warnings and gave a statement that was heard by Deputy Allen. [Appellant] admitted that he had planted the marijuana in a cornfield in Crawford County and that he was harvesting the plants that evening out of a concern that the plants would be damaged from inclement weather. The affidavit of probable cause that was prepared and signed by Trooper Temel discloses that [Appellant] also intended to harvest plants belonging to some other individual as a means of retaliating against that individual who [Appellant] believed had stolen his motorcycle.

After giving his statement, [Appellant] was then transported to the Ashtabula County jail by Deputy Allen's [sergeant] because there was no room in Deputy Allen's canine vehicle. Before leaving the scene, Deputy Allen took photographs of [Appellant's pick-up] truck. [Appellant] was...