No. 107 April Term, 1976, Appeal from the Judgment of Sentence, Entered on September 5, 1975, by the Court of Common Pleas, Criminal Division of Mercer County at No. 3 April, 1973.
William J. Rundorff, Sharon, for appellant.
Charles S. Hersh, Assistant District Attorney, Sharon, with him Joseph J. Nelson, District Attorney, Mercer, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case. Hoffman and Spaeth, JJ., concur in the result.
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This is an appeal from the judgment of sentence of the Court of Common Pleas of Mercer County, Criminal Division and involves the issue as to whether certain evidence used against the defendant, Kenneth Bable, at trial should have been suppressed.
The defendant and a co-defendant were arrested on January 28, 1973 and charged with burglary, possession of burglary tools and conspiracy. A motion to suppress evidence was filed by the defendant on May 3, 1973. The motion was denied on May 10, 1973. The defendant was found guilty of the charges by a jury on May 22, 1973. After post-trial motions were denied and the defendant sentenced, this appeal followed.
The facts established that on January 23, 1973, Officer James Reel of the Greenville Police Department received a
[ 254 Pa. Super. Page 75]
radio call in his patrol car that a burglar alarm was ringing at a store in Hempfield Township, an adjoining municipality. Responding to the call, Officer Reel arrived on the scene to see a Buick automobile parked near the door of the store. As the Buick began to move away from the scene Reel noticed two people inside the vehicle. He then received a call from a Hempfield Township police officer who was on the way to the scene of the crime. The other officer asked Reel to follow the Buick and to apprehend its occupants for questioning. Reel did this finally catching up to the Buick in Adamsville in Crawford County. At that point Reel stopped the Buick, occupied by the defendant and a co-defendant, arrested the occupants, and searched the vehicle. During the search he discovered a screwdriver under the seat of the vehicle which had green and white paint on it. The screwdriver was later introduced into evidence at trial as the door to the store was scratched and had been painted with white and green paint. Defendant had filed a suppression motion asking that the screwdriver be suppressed because Officer Reel did not have probable cause to make a lawful arrest. Defendant's attorney did not raise the issue of whether the arrest was unlawful because Reel did not have the authority to arrest defendant since he was a Greenville policeman. Defendant has new counsel on appeal who raised the issue on post-trial motions and in this appeal.
There is no doubt that the arrest of the defendant and co-defendant by Officer Reel was unlawful because he had no authority to arrest anyone in Hempfield Township. In Commonwealth v. Troutman, 223 Pa. Super. 509, 302 A.2d 430 (1973), decided March 27, 1973, we held that the Act of August 6, 1963, P.L. 511, No. 267, § 1 (19 P.S. 11) did not give local police the right to make arrests outside of their own municipalities unless the arrest was made after hot pursuit and of a suspected felon. In our case, the arrest was made of a suspected felon and after "hot pursuit" but the hot pursuit began in Hempfield Township and not in Greenville where Reel was authorized to act. Thus, the arrest of the defendant was unlawful as Hempfield and Greenville did
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not have any municipal agreements allowing police officers of one municipality to arrest in the other. The police departments of each municipality had a "tacit" agreement to that effect. However, such an agreement made between police departments does not confer authority to make such arrests because only the municipalities may enter into such agreements. Police departments have no authority to do so. It should also be pointed out that Troutman, supra, had been decided at the time of defendant's suppression hearing although it had not yet been printed in the advance sheets. The lower court held that because the defendant's attorney did not advance this theory at the suppression hearing it is waived, although it was raised on post-trial motions. It should also be noted that the co-defendant, who was on trial later than the defendant ...