No. 1686 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Lancaster County (Criminal) at Nos. 1877-79 of 1976.
Edward F. Browne, Jr., Assistant Public Defender, Lancaster, for appellant.
John A. Kenneff, Assistant District Attorney, Lancaster, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting statement. Jacobs and Watkins, former President Judges, and Hoffman, J., did not participate in the consideration or decision of this case.
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Appellant was found guilty after jury trial of conspiracy,*fn1 possession of instruments of crime,*fn2 and burglary.*fn3
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The facts giving rise to appellant's arrest and prosecution in Lancaster County present us with one novel question of law, surely one of first impression, but unfortunately, appellant has waived his right to make this argument before us. This question deals with the authority of federal officers to make an arrest for a state crime.
On June 10, 1976, during daylight hours, 13 FBI agents from the FBI office in Philadelphia, acting under the direction of Supervising Agent Richard Schivein and as a part of a task force investigating a large scale interstate burglary ring, followed appellant and three other persons*fn4 from the Philadelphia area to Lancaster. The details of this endeavor are lengthy and serve no purpose in the resolution of the appeal, except to note that appellant and his companions traveled by way of the Pennsylvania Turnpike in two automobiles, clearly identified in the record as a certain Chevrolet and a certain Pontiac. On reaching a suburban area of Lancaster, the two individuals in the Pontiac transferred to the Chevrolet and proceeded to Spring Valley Road. Because Spring Valley Road was sparsely populated and there was little vehicular traffic, the FBI surveillance of the Chevrolet was backed off at this point to avoid detection, but agents kept a constant surveillance on the then-parked Pontiac. The surveillance of the Chevrolet was backed off at approximately 1:45 p. m.
At approximately 1:50 p. m., a resident of Spring Valley Road returned to her home and saw a Chevrolet*fn5 back from her driveway and drive away. She could not identify the occupants, but she observed the trunk of the Chevrolet open and a large square object covered by a blanket inside the
[ 265 Pa. Super. Page 74]
trunk. On entering her home, she discovered it had been burglarized and that a large safe and all of her valuable jewelry were missing. She reported the burglary by telephone to local police between 1:55 p. m. and 2:00 p. m. The FBI agents, monitoring local police calls on their car radios, heard the report of the burglary on Spring Valley Road. At 2:02 p. m.*fn6 the agents watching the Pontiac observed the Chevrolet return to the parking area. These agents saw the trunk of the Chevrolet opened, and a blanket partially covering a large safe inside the trunk. They then observed the four men transfer a black bag to the Pontiac. Two of the men reentered the Chevrolet, while the other two entered the Pontiac, and both cars drove off, under surveillance by the agents.
At a point just prior to re-entry onto the Pennsylvania Turnpike, Supervising Agent Schivein gave his agents orders to stop both cars and make arrests. This was done, and local and state police were ...