Com. v. Thompson

• Decision Date: 19 September 1988
• Citation: 377 Pa.Super. 598,547 A.2d 1223
• Parties: COMMONWEALTH of Pennsylvania v. Stuart THOMPSON, Appellant.
• Court: Pennsylvania Superior Court

Page 1223

547 A.2d 1223

377 Pa.Super. 598

COMMONWEALTH of Pennsylvania v. Stuart THOMPSON, Appellant.

Superior Court of Pennsylvania.

Argued April 27, 1988.

Filed Sept. 19, 1988.

John R. Merrick, Public Defender Jenny Steinen, Asst. Public Defender, West Chester, for appellant.

Stuart B. Suss, Asst. Dist. Atty., West Chester, for Com., appellee.

Before CAVANAUGH, WIEAND and DEL SOLE, JJ.

CAVANAUGH, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Chester County, sentencing the appellant to a thirty (30) day to twenty-three (23) month term of incarceration following his conviction for Driving Under the Influence of Alcohol. We reverse.

On the evening of August 3, 1986, Valley Forge Park Ranger John Bandurski observed the appellant run a stop sign within the confines of the park. He activated his emergency lights and siren and pursued the appellant until the latter brought his yellow sedan to a stop approximately one-quarter mile beyond the park limits. This area was within the boundaries of Tredyffrin Township. Ranger Bandurski then approached the appellant, who had exited his vehicle, and noted that "[h]e had slurred speech and the smell of alcohol on his breath." After advising the appellant of his failure to stop at the traffic sign (an assertion which the appellant denied), Ranger Bandurski asked him to submit to a field sobriety test. Three such tests were administered, two of which the appellant failed. Ranger Bandurski then contacted his dispatcher in an effort to communicate with Tredyffrin Township as well as to secure assistance from an additional park ranger. Approximately two to five minutes thereafter, Ranger Paul Reilly and Tredyffrin Township Police Officer Stephen Dintino and his shift sergeant arrived at the scene. After being advised that the appellant might be intoxicated, Officer Dintino proceeded to administer his own sobriety tests. Based upon the results of the foregoing, the appellant was placed under arrest. ¹ He was subsequently advised of his Miranda warnings and of the Pennsylvania Implied Consent provision in connection with a request that he submit to chemical testing of his blood. The appellant refused to comply, whereupon he was transported to the Tredyffrin Township police station and advised of the township policy regarding the video taping of persons arrested for Driving Under the Influence. Prior to taping, the appellant requested the assistance of a Public Defender. Accordingly, both the appellant and Officer Dintino attempted to contact the Chester County Public Defender by various methods but were unsuccessful in their efforts. Officer Dintino then proceeded to film the appellant as he performed a horizontal gaze nystagmus test and a walk and turn test. Prior to taping, the appellant was not advised of his Miranda rights a second time, but the warnings were administered during the course of the filming. Several months later at a preliminary hearing held on October 1, 1986, the appellant was held for court on the charge of Driving Under the Influence (75 Pa.C.S.A. § 3731(a)). ² A pretrial suppression hearing was conducted on December 9-10, 1986, at the conclusion of which the hearing court denied the appellant's Motion to Quash the indictment on jurisdictional grounds. Said hearing was continued until January 7, 1987, at which time the court denied the remaining Motion to Suppress concerning the videotape. ³ At the conclusion of the jury trial on January 9, 1987, the appellant was convicted of Driving Under the Influence. Following the denial of Post-Verdict Motions on July 14, 1987, the appellant was sentenced to a thirty (30) day to twenty-three (23) month term of incarceration and was further required to pay a fine in the amount of $1,500.00. ⁴ This is an appeal from the judgment of sentence.

The following issues have been raised for our consideration:

Did the trial court err when he held that the extra-territorial arrest of the defendant by a federal park ranger was proper?

Did the court err when he ruled that the video tape of the defendant's third set of field test was admissible at trial?

While we find no merit in the appellant's first claim, a thorough review of the record and controlling authority leads us to the conclusion that the trial court erred in failing to suppress the videotape evidence. Accordingly, we reverse the judgment below.

It is initially contended that the extraterritorial arrest was improper, insofar as Ranger Bandurski was without jurisdiction to detain the appellant beyond the boundaries of the federal park. While the appellant would characterize his detention as an arrest, it would appear from the record that the actual arrest was effectuated by Officer Dintino subsequent to the second set of field sobriety tests. Notwithstanding the foregoing, it is beyond peradventure that Ranger Bandurski was authorized to apprehend the appellant in the circumstances at bar.

Pursuant to 16 U.S.C.A. § 1a-6(a)(1):

§ 1a-6. Law enforcement personnel within National Park System

(A) Designation authority of Secretary; powers and duties of designees

In addition to any other authority conferred by law, the Secretary of the Interior is authorized to designate, pursuant to standards described in regulations by the Secretary, certain officers or employees of the Department of the Interior who shall maintain law and order and protect persons and property within areas of the National Park System. In the performance of such duties, the officers or employees, so designated may--

(1) carry firearms and make arrests without warrant for any offense against the United States committed in his presence, or for any felony cognizable under the laws of the United States if he has reasonable grounds to believe that the person to be arrested has committed or is committing such felony, provided such arrests occur within that system or the person to be arrested is fleeing therefrom to avoid arrest;

(emphasis added.)

According to the testimony elicited at trial, Ranger Bandurski observed the appellant run a stop sign within the confines of Valley Forge Park. He thereafter pursued the appellant until the latter brought his vehicle to a stop beyond park limits. We agree with the lower court that while Ranger Bandurski is without jurisdiction to effectuate an arrest in Tredyffrin Township, "the point of arrest should be determined to be the location where [the ranger] indicated his intent to stop [the appellant] not where [the appellant] actually chose to stop ..." Had the detention occurred on park property, there would be no question that Ranger Bandurski would have been entitled to arrest the appellant. Thus, the process of arrest was "set in motion" within park limits (i.e., within Ranger Bandurski's jurisdiction) and the fact that the process terminated beyond those limits (due solely to the appellant's actions) is irrelevant. As this court noted in Commonwealth v. Garner, 314 Pa.Super. 566, 461 A.2d 302 (1983), "Any police officer of any political subdivision may arrest any person beyond the territorial limits of such political subdivision for a summary or other offense committed by such person within such political subdivision if the officer continues in pursuit of such person after commission of the offense." Id. at 569-570, 461 A.2d at 304 (citing 42 Pa.C.S.A. § 8901). Section 8901, repealed in 1982, has been replaced by 42 Pa.C.S.A. § 8953 which provides in pertinent part:

§ 8953. Statewide municipal police jurisdiction

(a) General rule.--Any duly employed municipal police officer who is within this Commonwealth, but beyond the territorial limits of his primary jurisdiction, shall have the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office as if enforcing those laws or performing those functions within the territorial limits of his primary jurisdiction in the following cases:

* * *

* * *

(2) Where the officer is in hot pursuit of any person for any offense which was committed, or which he has probable cause to believe was committed, within his primary jurisdiction and for which offense the officer continues in fresh pursuit of the person after the commission of the offense.

(emphasis added.)

It is obvious that Ranger Bandurski was in "hot pursuit" of the appellant as evidenced by the circumstances of the case. Moreover, even though the foregoing discussion focuses upon Pennsylvania (as opposed to federal) law, the rationale behind the Commonwealth statutes is identical to that which underlies 16 U.S.C.A. § 1a-6. Accordingly, we find no merit in the claim that Ranger Bandurski was without legal authority to apprehend the appellant.

The appellant next challenges the lower court's failure to suppress the videotape of his third set of sobriety tests. The appellant has framed this claim in both fifth and sixth amendment terms. We conclude that the appellant's fifth amendment and sixth amendment rights were violated.

It is well settled that field sobriety tests do not, in and of themselves, implicate the fifth amendment. As we observed in Commonwealth v. Romesburg, 353 Pa.Super. 215, 509 A.2d 413 (1986), "Field sobriety tests do not elicit testimonial or communicative evidence and, thus, do not trigger fifth amendment protection." Id. at 218, 509 A.2d at 415. However, a recent line of cases has carved out an exception to this rule. Where the administration of a sobriety test results in the production of testimonial or communicative evidence, and where the test subject was compelled to supply this evidence, the fifth amendment protections apply. In Commonwealth v. Bruder, 365 Pa.Super. 106, 528 A.2d 1385 (1987), this court held that forcing a defendant to recite the alphabet while he was under suspicion for intoxication yielded evidence that was "essentially communicative in nature." Id. at 114, 528 A.2d at 1388. More recently, in Commonwealth...