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COMMONWEALTH PENNSYLVANIA v. GARY LEO MONTGOMERY AND SAMUEL TRIBUIANI. COMMONWEALTH PENNSYLVANIA V. SAMUEL TRIBUIANI (04/19/85)

filed: April 19, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
GARY LEO MONTGOMERY AND SAMUEL TRIBUIANI. COMMONWEALTH OF PENNSYLVANIA V. SAMUEL TRIBUIANI, APPELLANT



No. 03557 PHL 82, Appeal from the Order of November 17, 1982 in the Court of Common Pleas of Montgomery County, Criminal Division, at Nos. 1133, 1134, 735, 758-82. No. 01163 PHL 83, Appeal from the Order of November 17, 1982 in the Court of Common Pleas of Montgomery County, Criminal Division, at Nos. 735-82, 758-82.

COUNSEL

Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellant (at 3557) and appellee (at 1163).

Gilbert J. Scutti, Philadelphia, for appellees (at 3557).

Maurino, J. Rossanese, Jr., Conshohocken, for appellant (at 1163).

McEwen, Tamilia and Hoffman, JJ.

Author: Hoffman

[ 341 Pa. Super. Page 575]

The issues on appeal are (1) whether the Pennsylvania Intrastate Hot Pursuit Statute, 42 Pa.C.S.A. ยง 8901, authorizes police to pursue suspects into another jurisdiction in order to conduct a forcible investigatory stop and (2) assuming the instant arrest was illegal, whether the defendant Tribuiani's challenged statement was tainted by the illegality. We hold that the police must have probable cause to arrest before they pursue and detain a suspect in another jurisdiction and that the statement was properly admitted. Accordingly, we affirm the suppression order.

Prior to February 20, 1982, four affluent sections of Abington Township, Montgomery County, had been plagued by a high incidence of burglaries. Therefore, Abington police set up a special burglary and surveillance team in the four target areas. On February 19, 1982, a Friday evening, three police officers, in the Crosswicks section, observed a late model Cadillac bearing New Jersey registration 879-SDX in the immediate vicinity of the attempted burglary of a home. On February 20, at approximately 7 p.m., the same vehicle was observed by Officer John Worthington in the Chapel Hill area at a location approximately 125 yards from the Philadelphia County border. Officer Worthington

[ 341 Pa. Super. Page 576]

    radioed this information to Detective Allen Boerner who went to the reported location, parked his unmarked police vehicle some 75 yards behind the Cadillac, and commenced surveillance. Five to ten minutes later, he saw a figure dressed in dark clothing appear beside the Cadillac, get in, and drive off. Detective Boerner radioed for assistance and began to pursue the Cadillac. Upon the order of Detective Sergeant John Livingood, who was in charge of the antiburglary detail, the Cadillac was stopped for investigation at the intersection of Pine and Almott Roads in Philadelphia County, approximately two-tenths of a mile from the Abington Township border. Officer Worthington testified that he did not pull the vehicle over in Abington Township because he was concerned that, without backup, the car would have eluded him had he put his red lights on any sooner. (N.T. November 16, 1982 at 44-45). Upon being stopped, the two male occupants told the police that they had just come from the pharmacy. Defendant Samuel Tribuiani was the driver and defendant Gary Leo Montgomery was the passenger. The police requested Tribuiani's license and owner's card. Upon questioning, Tribuiani gave conflicting answers and was unable to state correctly the birthdate listed on his operator's license. The police observed that the two defendants wore dark clothing and sneakers. They also observed a flashlight, pry bar, gloves, metal cutters, and pages from a telephone directory on the seat of the vehicle. Upon police request, Tribuiani got out of the car and opened the trunk, revealing nothing suspicious. The police then gave him his Miranda warnings, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and put him in the police vehicle. Because Montgomery was observed bending over and making furtive movements, the police requested that he get out of the car. As Montgomery opened the car door, the police observed the butt of a gun protruding from underneath the seat. The weapon was identified as a loaded .38 caliber revolver. Montgomery was then arrested. Both defendants were taken to the Abington Township Police Department and charged with a

[ 341 Pa. Super. Page 577]

    violation of the Uniform Firearms Act, possession of an instrument of crime, and loitering and prowling.

On February 22, the defendants were escorted to a room in the Abington Police Station and shown an array of items that were taken in various burglaries in both Abington and Cheltenham Townships.*fn1 After viewing the items, the defendants requested and received the opportunity to speak to each other in private. They then each agreed to give statements admitting their complicity in a number of burglaries in Abington Township. On February 23, the defendants were driven throughout Abington Township, and they identified the homes that were the subjects of their burglaries. On that same day, Detective Edward Lynch of the Cheltenham Township Police Department appeared at the Abington Police Station to speak with the defendants about certain burglaries in Cheltenham Township. Both defendants were given Miranda warnings, signed a form acknowledging such, and then identified those items taken during the Cheltenham burglaries.

On February 24, Detective Lynch again met with defendant Tribuiani who signed a second Miranda form and agreed to appear at the Cheltenham Police Station the following day, after posting bail, to provide additional information with respect to the Cheltenham burglaries. Both defendants then posted bail and were released. Defendant Tribuiani went to his home in Philadelphia and then spent the night with his girlfriend in Atlantic City.

On February 25, defendant Tribuiani appeared at the Cheltenham Township Police Station. After riding through the township with the police and identifying those homes which he had aided in burglarizing, he signed a statement admitting his participation in the Cheltenham Township burglaries. He was then arraigned on Cheltenham burglary complaints and released on ROR bail.

[ 341 Pa. Super. Page 578]

At the November 16, 1982 pre-trial suppression hearing, the charges arising out of the Abington Township burglaries and those arising out of Cheltenham Township were consolidated for purposes of suppression and trial. On ...


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