Com. v. Lyons
| Decision Date | 13 March 1989 |
| Citation | 555 A.2d 920,382 Pa.Super. 438 |
| Parties | COMMONWEALTH of Pennsylvania v. Stephen M. LYONS, Appellant. |
| Court | Pennsylvania Superior Court |
Brett O. Feese, Dist. Atty., Williamsport, for Com., appellee.
Before OLSZEWSKI, KELLY and HESTER, JJ.
Appellant, Stephen M. Lyons, appeals from the judgment of sentence imposed following his conviction of resisting arrest.1 We affirm.
Appellant has raised four contentions of error for our consideration. Primarily, we are concerned with appellant's first contention, i.e. whether a county parole/probation officer may lawfully request the assistance of local law enforcement personnel to effectuate a warrantless arrest of a parole violator, and if so, whether local law enforcement personnel may make such an arrest without a court order and without the physical presence of the parole/probation officer but, at the request of a parole/probation officer who had left the scene shortly before the parole violator reappeared. We find the following. First a county parole/probation officer is authorized to effectuate a warrantless arrest of a parole violator. Second, local law enforcement personnel have statutory authority to aid a county parole/probation officer who requests their assistance in effectuating a warrantless arrest of a parole violator. Third, this arrest of a parole violator was legal even though it was effectuated by local law enforcement personnel, acting upon a request of assistance by a county parole/probation officer who was not physically present at the time of the arrest.
On March 11, 1987, appellant was paroled to the Adult Probation Office for Lycoming County. Special conditions had been placed upon his parole which required that appellant be intensively supervised. Appellant's case was assigned to Officer Scott L. Metzger, an adult probation officer. On April 22, 1987, Officer Metzger consulted with his supervisor concerning appellant's violations of his parole, i.e., repeated failures to report as scheduled and/or as requested and failure to notify and obtain permission to move from his authorized residence with his grandmother to his mother's residence at Powy's Park.2 Officer Metzger's supervisor thereupon directed Officer Metzger to apprehend appellant for violating the conditions of his parole. After two unsuccessful attempts to apprehend appellant at Powy's Park were made by Officer Metzger and two fellow county parole/probation officers, appellant was arrested on April 27, 1987, by four local deputy sheriffs. Appellant's resistance to the arrest by the local deputy sheriffs resulted in the filing of the resisting arrest charge which is the subject of this Following arraignment, appellant filed an omnibus pre-trial motion which challenged the legality of his arrest. The motion was denied. On October 14, 1987, a jury found appellant guilty of resisting arrest. Post-verdict motions were filed and denied. Appellant was sentenced to a term of imprisonment of one to two years in a state correctional institution to run concurrent with the remainder of the sentence he was serving prior to being paroled. This timely appeal followed.
appeal. We are not concerned here with the eventual disposition of the parole violation charge which gave rise to appellant's arrest.
On appeal, appellant contends that: (1) his arrest by the deputy sheriffs who were acting on the oral request of a county parole/probation officer, without a warrant, was not a lawful arrest for purposes of the crime of resisting arrest; (2) the evidence was insufficient to establish the degree of resistance required for the offense; (3) an improper reference to his prior criminal conduct compels a grant of a new trial; and (4) trial counsel was ineffective for failing to object timely to testimony of appellant's unrelated prior criminal behavior. We find each of appellant's contentions to be without merit. Accordingly, we affirm the judgment of sentence.
Appellant contends that his arrest without a warrant by the deputy sheriffs was illegal. He argues first that a county parole/probation officer cannot order or authorize another law enforcement officer (other than a parole/probation officer) to arrest a parolee on a technical parole violation without a warrant or court order.3 Secondly, he claims that deputy sheriffs cannot make a valid arrest of a parole violator without a court order. Appellant concludes that because his arrest was illegal, his conviction of resisting arrest cannot stand and he must be discharged. We do not agree.
Before addressing appellant's contention, we will first make a closer examination of the facts particularly relevant to this issue. Appellant had been placed on parole with special conditions which required intensive supervision. However, appellant repeatedly failed to meet the conditions of his parole. He failed to report, as scheduled and/or as requested, at least five times. He also failed to notify and receive permission from Officer Metzger to change his address as required by the terms of his parole before he moved from his grandmother's home to his mother's home which was located above a bar. As a result of appellant's failure to comply with the conditions of his parole, Officer Metzger consulted with his supervisor, who then concluded that appellant's conduct constituted material violations of his special intensive supervision parole status, and directed Officer Metzger to arrest appellant as a parole violator.
Officer Metzger went to Powy's Park twice with two other county parole/probation officers to effectuate a legal warrantless arrest. The first time appellant escaped by leaving through one of the many exits from his mother's home, wading across Lycoming Creek, and running up the mountain on the other side. The second time appellant was not there. As a result of these fruitless visits, Officer Metzger became well aware of the layout of Powy's Park, its several exits, and its close proximity to Lycoming Creek. Realizing that appellant could easily escape from the three parole/probation officers, Officer Metzger requested assistance from the local Sheriff's office.
The first attempt to apprehend appellant at Powy's Park with the assistance of the local deputy sheriffs, as well as members of the Pennsylvania State Police, was unsuccessful because appellant was not there. Later that day, however, Mrs. Lyons called the Sheriff's office to inform them of her son's return, and to ask them to return. Because they were uncertain how to proceed Appellant argues that a county parole/probation officer cannot order or authorize another law enforcement officer (other than a parole/probation officer) to arrest a parolee on a technical parole violation without a warrant or court order. We cannot agree.
the deputy sheriffs made police radio contact with the county parole/probation officers who had initially asked them for their assistance. The parole/probation officers asked the deputy sheriffs to go ahead and attempt to apprehend appellant because the deputy sheriffs had already received extra back-up from other local police, because the parole/probation officers were minutes away and would arrive shortly thereafter, and because the parole/probation officers were concerned that appellant might escape before they could return to the site. The deputy sherrifs then arrested appellant.
A county parole/probation officer is not required to obtain a warrant or a court order in order to arrest a parolee who is in violation of parole; 61 Pa.S.A. § 309.1 provides:
Probation officers heretofore or hereafter appointed by any court of record of this Commonwealth are hereby declared to be peace officers, and shall have police powers and authority throughout the Commonwealth to arrest with or without warrant, writ, rule or process, any person on probation or parole under the supervision of said court for failing to report as required by the terms of his probation or parole or for any other violation of his probation or parole.
61 Pa.S.A. § 309.1 (emphasis added).
Appellant attempts to distinguish between the arrest of a parolee on a technical parole violation and the arrest of a parolee on a criminal parole violation, implying that a warrantless arrest may only be made to effectuate the latter. The plain wording of the statute contains no such restriction or distinction, and we have neither the authority nor the inclination to engraft such a restriction or distinction upon it. See Commonwealth v. Revtai, 516 Pa. 53, 532 A.2d 1 (1987). Indeed, the sole example given by the act plainly involves a technical violation rather than a criminal violation, i.e. failure to report.
Appellant further argues that a warrant or court order is required in order for a county parole/probation officer to order or authorize another law enforcement officer to arrest a parole violator. Again, we cannot agree.
Deputy sheriffs in Pennsylvania are statutorily authorized to come to the assistance of county parole/probation officers. The powers and duties of deputy sheriffs are defined in 16 Pa.S.A. § 1216:
Peace Officers; power and duties.
Constables, county detectives, sheriffs, deputy sheriffs, waterways patrolmen and game protectors shall perform all those duties authorized or imposed on them by statute.
16 Pa.S.A. § 1216 (emphasis added).
One of the duties "authorized or imposed" on deputy sheriffs by statute is to maintain the peace and dignity of this Commonwealth. Section 8952 provides in pertinent part:
Primary municipal police jurisdiction.
Any duly employed municipal police officer shall have the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office anywhere within his primary jurisdiction as to:
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(2) Any other event that...
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