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COMMONWEALTH PENNSYLVANIA v. ANDREW FIUME (10/30/81)

filed: October 30, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
ANDREW FIUME, JR., APPELLANT



Nos. 686 and 687 April Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Allegheny County, Criminal Division, at Nos. CC7608492A and CC7700145

COUNSEL

Richard F. Andracki, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

Price, Spaeth, Hester, Cavanaugh, Brosky, Watkins and Hoffman, JJ. Hester, Cavanaugh and Hoffman, JJ., concur in the result. Spaeth, J., files a concurring and dissenting opinion. Watkins, J., files a dissenting opinion. Price, J., did not participate in the consideration or decision of this case.

Author: Brosky

[ 292 Pa. Super. Page 56]

Andrew Fiume was convicted at a non-jury trial of involuntary manslaughter and driving under the influence of intoxicating liquor. Appellant filed post-file motions which were denied. He was sentenced to three years probation. This appeal followed. We reverse and remand to the trial court for a new trial.

Appellant seeks resolution of three issues: first, whether the arrest was unauthorized because it occurred outside the officers' jurisdiction; second, whether the officers had probable cause to make the arrest; and, third, whether the verdict was supported by sufficient evidence. We will not discuss the latter two issues since our resolution of the first issue disposes with the case.

Fiume and two friends were drinking on the night of October 30, 1976 in Plum Borough, Allegheny County, Pennsylvania. The record indicates that they drank between three and four pitchers of beer that evening. After leaving the tavern where they had been drinking, they drove in appellant's automobile to parts unknown. After driving several miles, appellant's car veered to the left and skidded into a telephone pole. Fiume and one other passenger were thrown from the vehicle. The vehicle was broken in two by the force of the utility pole which cracked and fell into the automobile. The third passenger was pinned beneath the pole when it hit the car. He subsequently died.

[ 292 Pa. Super. Page 57]

The police responded to calls reporting the accident. Officer Ronald Meyers of the Plum Borough Police Department, Allegheny County, shortly after arriving at the scene of the accident, directed the three men be taken to Citizens General Hospital which is located in New Kensington, Westmoreland County. Meyers then radioed Officer Focareta who coincidentally was at the hospital to investigate another accident. He was also asked to investigate the accident in this case. Officer Focareta is also a member of the police department of Plum Borough.

Officer Focareta approached one of the victims in this case and asked him who had been driving the vehicle. That person indicated Fiume was driving. Appellant was then questioned, but he did not respond. The officer detected the scent of alcohol surrounding Fiume. He then placed appellant under arrest and read to him his Miranda rights.*fn1 A blood alcohol test was ordered which indicated a level of .22%.*fn2

At a pre-trial hearing, Fiume sought to have the results of the blood alcohol test suppressed, arguing that it was the fruit of an illegal arrest caused by the fact that the arrest resulted from an investigation which occurred outside the jurisdiction in which the officers were statutorily authorized to make arrests. The suppression motion was denied. Appellant also argued at trial that the accident resulted from a

[ 292 Pa. Super. Page 58]

    latent steering defect present in his vehicle at the time of the accident.

The Act of August 6, 1963, P.L. 511, No. 267, § 1, as amended, Act of November 2, 1973, No. 109, § 1, (19 P.S. § 11) states:

Any police officer in the employ of a 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 offense : Provided, however, that a police officer shall exercise only the power of arrest he would have if he were acting within the territorial limits of the political subdivision employing him.

(Emphasis added.)*fn3 Had the police sought to arrest appellant at the scene of the accident, they would have made a warrantless arrest.

The Act of April 29, 1959, P.L. 58, § 1204(a), 75 P.S. § 1204(a), amended by the Act of July 20, 1974, P.L. 522, No. 177 § 2, [75 P.S. § 1204(a)] provides:

Police officers, when in uniform and displaying a badge or other sign of authority, may arrest, upon view, any person violating any of the provisions of this act, where the offense is designated a felony or misdemeanor, or in cases causing or contributing to an accident resulting in injury or death to any person, and in all cases of arrest such peace officers shall forthwith make and file with the magistrate, before whom the arrested person is taken a complaint setting forth in detail the offense, and at once furnish a copy thereof to the person arrested. A peace officer may, upon review or upon probable cause without a warrant, arrest any person violating section 103.7 of this act in cases causing or contributing to an accident.

[ 292 Pa. Super. Page 59]

The offense of driving under the influence of liquor or drugs in effect at the time of the accident was:

Section 1037. Driving Under the Influence of Liquor or Drugs. -- It shall be unlawful for any person to operate a motor vehicle, tractor, streetcar or trackless trolley omnibus, while under the influence of intoxicating liquor or any narcotic drug or habit producing drug, or permit any person. . .

Act of April 29, 1959, P.L. 58, § 1037 (75 P.S. § 1037).

Thus, warrantless arrests are permitted if police have probable cause to believe a person is driving while intoxicated. Commonwealth v. Meyer, 488 Pa. 414, 412 A.2d 577 (1980); Commonwealth v. Levesque, 469 Pa. 118, 364 A.2d 932 (1976); Commonwealth v. Trefry, 249 Pa. Super. 117, 375 A.2d 786 (1977).

The record discloses that, although the police had control over the appellant while in their jurisdiction, they at no time sought to arrest him. Thus, without regard to whether they could have arrested him pursuant to 75 P.S. § 1204(a), our inquiry must focus on the legitimacy of the extraterritorial arrest undertaken by Officer Focareta. Essentially, we must determine whether that officer was continuing "in pursuit of the offender after commission of the crime." 19 P.S. § 11.

The statute requires that an extraterritorial arrest be made by police only when it is undertaken as the result of a "continuous pursuit." This pursuit need not be "hot" however it must be "fresh." In United States v. Getz, 381 F.Supp. 43 (E.D.Pa.1974), affirm 3 Cir., 510 F.2d 971, cert. den. 421 U.S. 950, 95 S.Ct. 1684, 44 L.Ed.2d 105 (1976), a case involving an extraterritorial arrest of bank robbers who had been continuously pursued by the police for 35 minutes, District Judge Troutman said in an opinion for the court:

Defendants argue that the arrest was invalid because the officers were not in "hot" pursuit. Apparently, defendants contemplate that only a fender-smashing Hollywood style chase scene would satisfy the requirement of

[ 292 Pa. Super. Page 60]

    the statute. We do not read the act so restrictively. The statute on its face provides only that arrest may be effected beyond the jurisdiction so long as "such officer continues in pursuit of the offender . . ." It does not specify that the officer must be in "hot" pursuit. The phrase "continues in pursuit" supports the conclusion that the statute contemplates "fresh pursuit." In the instant case, Officers Young and Scalzo were in continuous pursuit of the evasive robbers from the time of the initial communication at 2:20 p. m. until the arrest at 2:55 p. m., a period of time encompassing 35 minutes. The officers proceeded diligently in their search for the fleeing robbers and there was no hiatus or interruption in their efforts. ...


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