Com. v. Galloway

• Decision Date: 15 May 1990
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Joseph P. GALLOWAY, Appellee.
• Court: Pennsylvania Supreme Court

Page 1045

574 A.2d 1045

525 Pa. 12

COMMONWEALTH of Pennsylvania, Appellant, v. Joseph P. GALLOWAY, Appellee.

Supreme Court of Pennsylvania.

Argued Sept. 27, 1988.

Decided May 15, 1990.

LeRoy S. Zimmerman, Atty. Gen., Robert L. Keuch, Executive Deputy, Atty. Gen., Lawrence N. Claus, Senior Deputy Atty. Gen., Paul Von Geis, Deputy Atty. Gen., Robert A. Graci, Chief Deputy Atty. Gen., Paul M. Yatron, Harrisburg, for appellant.

Joseph M. George, Mark D. Brooks, Uniontown, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and STOUT, JJ.

OPINION OF THE COURT

PAPADAKOS, Justice.

This case arises from the Commonwealth's request for us to review a trial court grant, subsequently affirmed by the Superior Court, of a Motion to Quash a Criminal Information in a case where Appellee, the driver of an automobile being driven erratically and on the wrong side of the highway, was stopped by a Special Agent of the Attorney General pending the arrival of the State Police who then took him into custody and administered a breathalyzer test. For the reasons explained below, we reverse.

The facts, as stipulated, at the trial court hearing on the motion, are as follows: Agent Charles Becker of the Bureau of Criminal Investigations of the Pennsylvania Attorney General's Office pursued Appellee's truck which was weaving erratically and being driven the wrong way on a highway. Agent Becker, dressed in plain clothes, flashed the red siren on his unmarked car. Appellee Galloway pulled off the road and Agent Becker used a bullhorn to order him out of the truck to the rear and to remain still. The agent then removed the truck's keys, presented his badge to Galloway, gave some type of Miranda warning, and stated that he was under arrest (H.T. 3-4, 9). Agent Becker then radioed the State Police and Trooper Robert Frederick responded to the call and took Galloway into custody, administered a breathalyzer test which showed a reading of .17 percent, and signed a criminal complaint charging him with driving under the influence (75 Pa.C.S. § 3731). Trooper Frederick's affidavit states his knowledge of the crime was based on information received from "Charles V. Becker," and another witness, William L. Kelly, as well as the "odor of alcohol" and "breathalyzer test administered."

After the hearing before the Honorable W. Franks on Appellee-defendant's motion to quash the criminal information filed in this case, the motion was granted. In his opinion, Judge Franks concluded:

The argument put forth by defendant, and concurred in by this Court, is that Special Agent Becker, as a member of the Attorney General's Office, was without authority to arrest defendant in the instant situation. The Commonwealth contends that Special Agent Becker falls within the definition of a "police officer" as construed by the Pa.R.Crim.P. No. 51(c), 42 Pa.C.S.A. As it was stipulated to by the parties that this was not a private citizen's arrest, Special Agent Becker must be statutorily authorized to make arrests. This appears to be a case of first impression in the Commonwealth. Counsel and the Court have not found any decisions on this issue by our Courts to guide us. However, we find that a Special Agent of the Attorney General's Office did not have the authority to make an arrest such as occurred in the instant case. (Slip opinion, p. 2).

The Superior Court affirmed in a memorandum opinion, 348 Pa.Super. 631, 501 A.2d 291, adopting the argument that Judge Franks had the sound discretion to grant the motion under Commonwealth v. Niemetz, 282 Pa.Superior Ct. 431, 422 A.2d 1369 (1980).

Initially, we agree with the lower courts and take this opportunity to reject expressly the Commonwealth's claim that the Office of the Attorney General possesses general arrest powers. Agent Becker, therefore, could not have been acting as an arresting officer in this case.

In reaching this conclusion, we point out first that under Pa.R.Crim.P. 3(l ) and (o ), a clear distinction is drawn between a "law enforcement officer" and a "police officer":

(1) Law Enforcement Officer is any person who is by law given the power to enforce the law when acting within the scope of that person's employment.

(2) Police Officer is any person who is by law given the power to arrest when acting within the scope of the person's employment.

Second, under the Commonwealth Attorney's Act, Act of October 15, 1980, P.L. 950, No. 164, § 101, et seq., 71 P.S. § 732.101 et seq. (hereinafter referred to as "Act"), the intent of the General Assembly was to limit the authority of that Office to investigate and prosecute only those criminal offenses specifically enumerated by the legislature. Section 732-205 of the Act articulates the cases in which the Attorney General is empowered to act:

Section 732-205. Criminal Prosecutions.

(a) Prosecutions.--The Attorney General shall have the power to prosecute in any county court the following cases:

(1) Criminal charges against State officials or employees affecting the performance of their public duties or the maintenance of the public trust and criminal charges against persons attempting to influence such State officials or employees or benefit from such influence or attempt to influence.

(2) Criminal charges involving corrupt organizations as provided for in 18 Pa.C.S. § 911 (relating to corrupt organizations).

(3) Upon the request of a district attorney who lacks the resources to conduct an adequate investigation or the prosecution of the criminal case or matter or who represents that there is the potential for an actual or apparent conflict of interest on the part of the district attorney or his office.

(4) The Attorney General may petition the court having jurisdiction over any criminal proceeding to permit the Attorney General to supersede the district attorney in order to prosecute a criminal action or to institute criminal proceedings. Upon the filing of the petition, the president judge shall request the Supreme Court to assign a judge to hear the matter. The judge assigned shall hear the matter within 30 days after appointment and make a determination as to whether to allow supersession within 60 days after the hearing. The district attorney shall be given notice of the hearing and may appear and oppose the granting of the petition. Supersession shall be ordered if the Attorney General establishes by a preponderance of the evidence that the district attorney has failed or refused to prosecute and such failure or refusal constitutes abuse of discretion.

(5) When the president judge in the district having jurisdiction of any criminal proceeding has reason to believe that the case is a proper one for the intervention of the Commonwealth, he shall request the Attorney General to represent the Commonwealth in the proceeding and to investigate charges and prosecute the defendant. If the Attorney General agrees that the case is a proper one for intervention, he shall file a petition with the court and proceed as provided in paragraph (4). If the Attorney General determines that the case is not a proper case for intervention, he shall notify the president judge accordingly.

(6) Criminal charges investigated by and referred to him by a Commonwealth agency arising out of enforcement provisions of the statute charging the agency with a duty to enforce its provision.

(7) Indictments returned by an investigating grand jury obtained by the Attorney General.

(8) Criminal charges arising out of activities of the State Medicaid Fraud Control Unit as authorized by Article XIV (relating to fraud and abuse control), Act of June 13, 1967, (P.L. 31, No. 21), known as the "Public Welfare Code," and the federal law known as the "Medicare-Medicaid Antifraud and Abuse Amendments." (Footnotes omitted).

The subsequent section, 732-206, provides that:

Section 732-206. Law enforcement and criminal investigations; investigating grand juries.

(a) Law enforcement; criminal investigations. The Attorney General shall be the chief law enforcement officer of the Commonwealth; the district attorney shall be the chief law enforcement officer for the county in which he is elected. The Attorney General shall have the power to investigate any criminal offense which he has the power to prosecute under section 205; he shall continue the existing programs relating to drug law enforcement. The Pennsylvania State police shall cooperate with the Attorney General and furnish such services as the Attorney General shall request.

Our most recent interpretation of that statute held that the Act is the sole grant of authority to the Attorney General, and he "does not possess any inherent additional powers not therein set forth." See, Commonwealth v. Carsia, 512 Pa. 509, 511, 517 A.2d 956, 957 (1986), where we also concluded "that the power of the Attorney General to prosecute criminal matters is prescribed by section 205."

Having determined that this state officer is governed solely by the Act, we turn next to the Commonwealth's contention that "inherent in the authority to investigate and prosecute is the authority to arrest." (Brief, p. 23). We agree that the Attorney General and his agents are empowered to apply for warrants and to make arrests in those instances where an investigation or prosecution is undertaken pursuant to § 732-205. Obviously, that arrest power is designed to facilitate the investigative and prosecutorial aims of the Attorney General's office. But the power is limited thereby, and we will not read the statute to expand the scope of that power beyond the bounds of the legislative intent underlying it. The specific issue to be decided here is whether those arrest powers, invested in a "law enforcement" officer for purposes of investigating and prosecuting offenses listed in § 732-205, are also of a general nature in the same sense by which municipal police officers and the State Police are authorized by statute to arrest as "police...