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COMMONWEALTH PENNSYLVANIA v. MARK STEVEN PALM AND EDWARD EUGENE ZENDT (05/20/83)

filed: May 20, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
MARK STEVEN PALM AND EDWARD EUGENE ZENDT, APPELLANTS



NO. 169 Harrisburg, 1980, Appeal from the Order of the Court of Common Pleas of Perry County, entered August 8, 1980, Criminal, No. 20 of 1980.

COUNSEL

Allen E. Hench, Newport, for appellants.

R. Scott Cramer, Assistant District Attorney, Duncannon, for Commonwealth, appellee.

Brosky, McEwen and Beck, JJ.

Author: Mcewen

[ 315 Pa. Super. Page 380]

Appellants were charged with a violation of the Pennsylvania Game Law by the unlawful killing of a deer out of season,*fn1 and convicted as charged before a District Justice. A summary appeal proceeding was taken and after a trial de novo appellants were found guilty. The court entered an order which dismissed the appeal and reimposed the sentence imposed by the District Justice.

Appellants present in their brief the following Statement of Questions:

I. Is probable cause necessary for a Game Commission Officer to stop and seize a vehicle in the course of investigating a suspected Game Law violation?

II. Do Game Law Enforcement Officers have probable cause to stop and seize a vehicle observed near an area later in time than the possible occurrence of a suspected violation?

III. Should Game Law Enforcement Officers give Miranda warnings before a custodial and accusatory interrogation regarding a suspected Game Law Violation?

IV. Is a search of a vehicle stopped to investigate a suspected Game Law violation proper where no probable cause for a stop existed and no free or unconstrained consent was given?

The quite careful opinion of distinguished President Judge Keith B. Quigley, provides a fine analysis of the fundamental issues presented and we share his views that game protectors must have reasonable suspicion to stop a vehicle and must have probable cause to search a vehicle, but we reverse for the reason that we conclude appellants were subjected to custodial interrogation by the game protectors and were, therefore, entitled to Miranda*fn2 warnings.

[ 315 Pa. Super. Page 381]

The District Game Protector and his deputy supplied in their testimony a history of the occurrence. That testimony reveals that as the deputy, in full uniform, drove to investigate the sound of gunshots, a fast moving van with distinctive taillights passed him proceeding in the opposite direction, leaving tire tracks in the freshly fallen snow. The game protector followed the path of the vehicle to a location in a field where he found evidence that a deer had been killed out of season. The deputy summoned the District Game Protector who further examined the site and also concluded that a deer had been killed. As the game protectors proceeded toward the residence of one of the appellants, Mark Palm, by reason of their suspicion that the distinctive looking van belonged to Mr. Palm, the van passed them from the opposite direction. The game protectors immediately gave chase in their marked enforcement vehicle and brought the van to a halt.

Appellant Palm was the owner and driver of the vehicle and the other appellant, Edward Zendt, was in the front seat. The District Game Protector, with the aid of a flashlight, first observed the front interior of the van and saw what appeared to be blood on the hands of appellants. When the game protector inquired about the blood, appellant Palm responded that it was from an injured cow. The game protector secured the permission of appellant Palm to look in the rear of the van, where he saw "deer hair sticking up on the red carpet." As a result, the protector told appellant Palm to turn off the motor while expressing to them his belief that "[appellants] were responsible for taking the deer and . . . had some problems." Appellants were further informed of certain penalties for the suspected game law violation and advised, if involved, that "it would be a lot better if [they] owned up to it."

The District Game Protector proceeded to tell appellant Palm that he "would need some information" and to "come back to my vehicle with me." In compliance with this order, appellant Palm seated himself in the front passenger seat of the enforcement vehicle, flanked to his left by the

[ 315 Pa. Super. Page 382]

District Protector and to his rear by the deputy protector, while appellant Zendt remained alone by the van. The District Protector initially asked appellant Palm such questions from a routine identification slip as "age, date of birth, and so on" before repeating that he "was sure [appellants] were responsible for the killing of the deer and that [appellant Palm] had some big problems," and again outlining certain penalties for violation of The Game Law. It was after further interrogation that appellant Palm admitted the unlawful killing of a deer. The game protector next instructed Palm to return to the van and to send appellant Zendt to them so that information could likewise be obtained from him. Zendt testified that he was informed by the protector that "[Palm] ...


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