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COMMONWEALTH v. ROBB (12/22/75)

decided: December 22, 1975.

COMMONWEALTH, APPELLANT,
v.
ROBB



Appeal from order of Court of Common Pleas of Montgomery County, April T., 1974, No. 1257, in case of Commonwealth of Pennsylvania v. James H. Robb.

COUNSEL

Stewart J. Greenleaf, Assistant District Attorney, William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, submitted a brief for Commonwealth, appellant.

Albert C. Oehrle, with him Wilson, Oehrle & Drayer, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Spaeth, J., concurs in the result. Jacobs, J., dissents.

Author: Price

[ 238 Pa. Super. Page 64]

Appellee James H. Robb was indicted by the Montgomery County Grand Jury for operating a motor vehicle while under the influence of intoxicating liquor. He filed a motion to suppress evidence with the Montgomery County Court of Common Pleas, and, on November 19, 1974, the lower court granted the motion. The Commonwealth, as is its right, Commonwealth v. Deren, 233 Pa. Superior Ct. 373, 337 A.2d 600 (1975), has appealed that order. Because the evidence was improperly suppressed, the order of the lower court must be reversed.

On April 18, 1974, Officer Gordon Simes, of the Montgomery Township Police Department, observed appellee's car drift slowly through a red traffic signal. Officer Simes followed appellee for approximately one to one and one-half miles, during which time appellee's driving was erratic. He weaved over the solid lines in the center of the highway and onto the right shoulder of the highway. When appellee stopped for a traffic signal at an intersection,

[ 238 Pa. Super. Page 65]

Simes turned on his flashing red light. Using the patrol car loudspeaker, Officer Simes ordered appellee to pull into a nearby gasoline station. The gasoline station is located in Bucks County, approximately 150 feet beyond the Montgomery County border. The officer testified that he waited until then to pull the appellee over because it would have been dangerous to have done so earlier.

Officer Simes left his car and approached that of the appellee. When appellee lowered his window, a distinct aroma alerted Simes to the possibility that appellee was under the influence of alcohol. Officer Simes ordered appellee from his car and administered some field tests: "simple coordination tests, standing on one foot balancing, closing the actor's eyes and requiring him to touch his nose with his finger, walking a line. The defendant did not pass these tests. . . ." The appellee was arrested and indicted for driving while under the influence of intoxicating liquor.

Appellee contends that the lower court order sustaining his motion to suppress evidence should be upheld because all of the evidence so obtained was the fruit of an illegal arrest. He contends that the arrest was illegal because Officer Simes, a Montgomery Township Police Officer, had no authority to arrest him in Bucks County.

The Act of Aug. 6, 1963, P.L. 511, No. 267, § 1, as amended, Act of Nov. 2, 1973, P.L. 330, No. 109, § 1 (19 P.S. § 11), provides: "Any police officer in the employ of a county, city, borough, town or township may arrest, with or without a warrant, any felon or person who has committed a misdemeanor or summary offense beyond the territorial limits of the political subdivision employing such officer for such offense committed by the offender within the political subdivision employing the police officer if such officer continues in pursuit of the offender after commission of the ...


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