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COMMONWEALTH PENNSYLVANIA v. EDWARD JOSEPH FISHER AND ROYAL NAPOLEON LANDRY (01/19/82)

filed: January 19, 1982.

COMMONWEALTH OF PENNSYLVANIA,
v.
EDWARD JOSEPH FISHER AND ROYAL NAPOLEON LANDRY, APPELLANTS



No. 1004 Philadelphia, 1980 Appeal from the Judgment of Sentence of the Court of Common Pleas of Luzerne County, Criminal Division, No. 1464 of 1978.

COUNSEL

Basil G. Russin, Wilkes-Barre, for appellants.

Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.

Cavanaugh, Montemuro and DiSalle,*fn* JJ. Cavanaugh and Montemuro, JJ., concurred in the result.

Author: Disalle

[ 294 Pa. Super. Page 489]

The appellants, Edward Fisher and Royal Napoleon Landry, were found guilty in a non-jury trial of criminal conspiracy*fn1 and possession of unstamped cigarettes.*fn2 They were subsequently sentenced to be imprisoned for one to three years on the possession charge and one to two years on the conspiracy charge, the sentences to run concurrently. Following the appellants' Petition for Reconsideration of Sentence,*fn3 the lower court reduced their sentences to six months to twenty-three and one-half months imprisonment on each charge, the sentences to run concurrently.

Appellants were arrested after 14,100 contraband cartons of cigarettes were discovered in the vehicle in which they were riding. The probable cause section of the search warrant explains the circumstances surrounding the arrest:

Defendant was traveling East on I-80, at MP266. Trooper observed above described vehicle while operating Radar. Defendant was stopped for exceeding the speed limit for several miles. Trooper observed camper body windows sealed with a type of fabric or material to prevent anyone from seeing inside. Tpr. Jesse's experience in the past indicates that this type of vehicle is indicative of cigarette smuggler. Tpr. Jesse has been

[ 294 Pa. Super. Page 490]

    responsible for seven other successful prosecutions for cigarette smuggling. On closer examination Tpr. Jesse observed the rear door of the camper was slightly pulled out and noticed a brown carton which is indicative of packaging cigarettes. Conversation ensued that [sic] Hazleton S, Station and Edward Fisher made an oral admition [sic] that cigarettes were in the camper.

Following the stop, appellants drove to the State Police Station, complying with Trooper Jesse's request to follow him there. The stated purpose of this request was to await a registration check on the camper. Before the registration check had been completed, and after appellant Fisher had refused to give his consent to a search of the camper, he was told by the officer that he was " free to go." As he was about to leave, he suddenly exclaimed: "ah hell, I might as well tell you. There are cigarettes on the camper." At this point, the officers obtained the warrant and searched the vehicle.

The appellants' first contention is that the trial court erred in denying their motion to suppress the evidence as the fruit of an illegal stop. They argue that their camper was illegally stopped based upon a radar check that showed they were within the six miles per hour margin provided by statute.*fn4 They also argue that even if they were legally stopped they were illegally ordered to follow Trooper Jesse to the State Police Station based solely upon the trooper's suspicions that the appellants were smuggling something.

We disagree with both of the appellants' arguments and hold that the lower court ruled properly. The appellants' first argument, that they were illegally stopped, is incorrect. The radar statute permits a person to be convicted only if the radar records their motor vehicle to be traveling at "six or more miles per hour in excess of the legal speed limit." 75 Pa.C.S.A. ยง 3368. The statute is silent as ...


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