Com. v. Gommer

• Decision Date: 05 October 1995
• Citation: 445 Pa.Super. 571,665 A.2d 1269
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Robert Mark GOMMER, Appellee.
• Court: Pennsylvania Superior Court

Page 1269

665 A.2d 1269

445 Pa.Super. 571

COMMONWEALTH of Pennsylvania, Appellant, v. Robert Mark GOMMER, Appellee.

Superior Court of Pennsylvania.

Argued April 20, 1995.

Filed Oct. 5, 1995.

Iva C. Dougherty, Assistant District Attorney, Reading, for Commonwealth, appellant.

Peter D. Maynard, Reading, for appellee.

Before WIEAND, BECK and HOFFMAN, JJ.

WIEAND, Judge:

Robert Mark Gommer was arrested and subsequently bound over for court on charges of driving while under the influence of alcohol, ¹ moving from one traffic lane to another without giving an appropriate signal, ² careless driving ³ and reckless driving. ⁴ Gommer filed a motion to suppress evidence on grounds that he had been illegally arrested by a member of the Pennsylvania State Police, who was off duty and out of uniform at the time of the purported arrest, and, therefore, without legal authority to make an arrest. The trial court agreed and ordered all evidence obtained as a result of Gommer's arrest to be suppressed. The Commonwealth has appealed from this ruling. ⁵ After careful review, we reverse.

In reviewing the ruling of a suppression court, "[a]n appellate court must first ascertain whether the record supports the factual findings of the suppression court, and then determine the reasonableness of the inferences and legal conclusions drawn therefrom." Commonwealth v. Nester, 443 Pa.Super. 156, 160, 661 A.2d 3, 4 (1995), citing Commonwealth v. Oglialoro, 377 Pa.Super. 317, 318, 547 A.2d 387, 387 (1988), aff'd, 525 Pa. 250, 579 A.2d 1288 (1990). This Court's "scope of appellate review is limited primarily to questions of law." Commonwealth v. Stine, 372 Pa.Super. 312, 314, 539 A.2d 454, 455 (1988), citing Commonwealth v. White, 358 Pa.Super. 120, 123, 516 A.2d 1211, 1212 (1986). " 'If the evidence supports the [suppression] court's factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error.' " Commonwealth v. Robinson, 438 Pa.Super. 119, 123, 651 A.2d 1121, 1123 (1994), quoting Commonwealth v. Smith, 396 Pa.Super. 6, 8, 577 A.2d 1387, 1388 (1990).

Instantly, the trial court's factual findings were based upon stipulations of counsel and may be summarized as follows. On August 18, 1993, at or about 11:10 p.m., Corporal Lisa Damore of the Pennsylvania State Police, who was off duty and not in uniform at the time, observed appellee operating a maroon Nissan Maxima automobile in a reckless manner in the City of Reading, Berks County. Appellee made a wide left turn from Kenhurst Boulevard onto Lancaster Avenue and then began swerving back and forth between the left and right lanes for northbound traffic. At one point, as he continued changing lanes, appellee was forced to swerve his vehicle to avoid striking two pedestrians standing beside a parked vehicle. He then drove onto the center line of the highway, forcing Corporal Damore to swerve her vehicle to avoid colliding with him. Thereafter, appellee drove into the drive-thru line at a McDonald's restaurant on Lancaster Avenue. When he subsequently pulled away from the drive-thru window, Corporal Damore signaled for appellee to pull over. Damore, who had already called State Police headquarters to request assistance, identified herself to appellee and asked him to await the arrival of other troopers to the scene. She informed appellee that she believed him to be driving under the influence, and, then, took possession of the keys of appellee's vehicle.

Troopers Smith and Wenger were dispatched to the McDonald's parking lot where appellee's vehicle had been stopped. Upon their arrival, Smith and Wenger were informed by Corporal Damore about her observations of appellee's erratic driving. Trooper Wenger requested appellee to produce his driver's license and registration card, but appellee was unable to find them. He initially refused a command to exit his vehicle, and, when he ultimately complied and got out of his vehicle, he exhibited a strong odor of alcohol. His eyes were bloodshot, and his speech was slurred. He experienced difficulty standing, walked with a staggering gait and had to lean against a wall for support. Appellee continued to be uncooperative with police, refusing to identify himself or to perform field sobriety tests. He was transported to a hospital, but there he refused to submit to blood alcohol testing after being informed of his rights under the implied consent law. Upon refusal, appellee was taken to district court for arraignment.

In suppressing all evidence obtained after the stop of appellee's vehicle, the suppression court reasoned that Corporal Damore by stopping appellee's vehicle and taking his car keys had, in fact, placed appellee under arrest. The court concluded that, because Damore was off duty and out of uniform, she was not acting within the scope of her employment as a police officer and, thus, lacked legal authority to make an arrest. The Commonwealth argues, however, that the trial court erred by determining that Corporal Damore had arrested appellee. Instead, it asserts, Damore had made an investigative traffic stop of appellee's vehicle and had merely detained him until the other troopers arrived to conduct further investigation. Furthermore, the Commonwealth urges, the subsequent arrest of appellee by Troopers Smith and Wenger was supported by probable cause, based upon information obtained independently of Corporal Damore's stopping of appellee's vehicle.

Section 6304 of the Vehicle Code provides, in pertinent part, as follows:

§ 6304. Authority to arrest without warrant

(a) Pennsylvania State Police.--A member of the Pennsylvania State Police who is in uniform may arrest without a warrant any person who violates any provision of this title in the presence of the police officer making the arrest.

....

(c) Other powers preserved.--The powers of arrest conferred by this section are in addition to any other powers of arrest conferred by law.

75 Pa.C.S. § 6304(a) and (c). The effect of subsection (c) of this statute is to incorporate by reference into the Vehicle Code other "existing statutes which bestow[ ] powers of arrest upon police officers." Commonwealth v. Neufer, 264 Pa.Super. 553, 558, 400 A.2d 596, 599 (1979). See also: Commonwealth v. Streater, 422 Pa.Super. 502, 619 A.2d 1070 (1993) (en banc). Section 6308(b) of the Vehicle Code provides that:

(b) Authority of police officer.--Whenever a police officer ... has articulable and reasonable grounds to suspect a violation of this title, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle's registration, proof of financial responsibility, vehicle identification number or engine number or the driver's license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.

75 Pa.C.S. § 6308(b). With respect to arrests for drunk driving, the Vehicle Code specifically states:

(c) Certain arrests authorized.--In addition to any other powers of arrest, a police officer is hereby authorized to arrest without a warrant any person who the officer has probable cause to believe has violated the provisions of this section, regardless of whether the alleged violation was committed in the presence of such officer. This authority to arrest extends to any hospital or other medical treatment facility located beyond the territorial limits of the police officer's political subdivision at which the person to be arrested is found or was taken or removed to for purposes of emergency treatment examination or evaluation provided there is probable cause to believe that the violation of this section occurred within the police officer's political subdivision.

75 Pa.C.S. § 3731(c).

The authority of members of the State Police to make warrantless arrests is delineated in section 712(a) of the Administrative Code, which provides:

The various members of the Pennsylvania State Police are hereby authorized and empowered:

(a) To make arrests, without warrant, for all violations of the law, including laws regulating the use of the highways, which they may witness, and to serve and execute warrants issued by the proper local authorities. They shall have all the powers and prerogatives conferred by law upon members of the police force of cities of the first class, and upon constables of the Commonwealth.

Act of April 9, 1929, P.L. 177, art. VII, § 712(a), as amended, 71 P.S. § 252(a). Additionally, the Act of June 4, 1897, P.L. 121, § 1, 13 P.S. § 45, which defines the arrest powers of constables, confers upon the State Police the power to:

in addition to the powers already conferred upon them, ... without warrant and upon view, arrest and commit for hearing any and all persons guilty of a breach of the peace, vagrancy, riotous or disorderly conduct or drunkenness, or [who] may be engaged in the commission of any unlawful act tending to imperil the personal security or endanger the property of the citizens....

13 P.S. § 45.

Upon careful reading of the statutes, we find no explicit limitation of the authority of a state police officer to make a traffic stop or arrest only when the officer is on duty and/or in uniform. In Commonwealth v. Hurst, 367 Pa.Super. 214, 532 A.2d 865 (1987), the Superior Court rejected a claim that a traffic citation, issued by an off duty state trooper, was invalid because the trooper was not acting within the scope of his employment at the time of the defendant's commission of the offense of reckless driving. ⁶ With respect to the actions of an off duty police officer, the Hurst Court observed as follows:

In Commonwealth v. Eshelman, 477 Pa. 93, 383 A.2d 838 (1978), our Supreme Court considered the validity of certain actions taken by an off-duty police officer. In that case, an off-duty policeman was running his dogs across the appellant's grandmother's property without permission. Near the edge of a wooded...