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COMMONWEALTH PENNSYLVANIA v. MICHAEL A. FISCHER (09/03/85)

submitted: September 3, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL A. FISCHER, APPELLANT



Appeal from the Judgment of Sentence of March 22, 1985 in the Court of Common Pleas of Monroe County, Criminal Division, No. 120 of 1984

COUNSEL

Michael R. Muth, Public Defender, Bradford, for appellant.

John B. Dunn, Assistant District Attorney, Stroudsburg, for Com., appellee.

Johnson, Hoffman and Cercone, JJ.

Author: Cercone

[ 348 Pa. Super. Page 419]

This is an appeal from the judgment of sentence entered after a jury trial in which appellant was found guilty of Burglary, Theft, Receiving Stolen Property, Criminal Mischief and Criminal Conspiracy.*fn1 Post-verdict motions were denied and a sentence of four to eight years was imposed. This appeal followed.

The question at issue is whether the police in this case had the authority under 42 Pa.C.S.A. § 8953(a)(2),*fn2 the

[ 348 Pa. Super. Page 420]

Municipal Police Jurisdiction Act, to pursue a van driven by appellant into a neighboring jurisdiction for the purpose of investigation which then led to the arrest of the van's occupants and the seizure of contraband found in the van. If we find that the facts known to the police in the course of their pursuit amounted to probable cause that a crime had been committed in their primary jurisdiction, only then may we conclude that the police acted within their authority when they left their primary jurisdiction.

When reviewing the ruling of a suppression court, we must first determine whether the factual findings can be supported by the record. If so, we are bound by those facts. We may not substitute our own findings for those of the suppression court. However, conversely, we are not bound by findings which have no support in the record. Thus, we are to consider only the evidence of the prosecution witnesses and so much of the defense evidence as fairly read remains, as a whole, uncontradicted in the record. Commonwealth v. Hamlin, 503 Pa. 210, 215-16, 469 A.2d 137, 139 (1983). See also, Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886 (1976); Commonwealth v. Goodwin, 460 Pa. 516, 333 A.2d 892 (1975).

So viewed, the facts elicited at the suppression hearing established that on the night of January 24, 1984, Officers Anthony Fluegel and Daryl Feller were patrolling Bush Mountain Acres development in Coolbaugh Township, Monroe County. The police had increased patrols in the area because six burglaries had been reported in the previous three weeks. As a result of the robberies, the police had made it a point to know which residents were at home and which were not among the thirty-three homes in the development.

At about 12:45 a.m., on January 25, while on routine patrol, Sergeant Fluegel and Officer Feller observed fresh tire marks in the snow of the driveway of the Passero residence. Since they knew these residents were not at home, they were about to investigate, when they observed a light through the woods on an adjoining roadway. They

[ 348 Pa. Super. Page 421]

    proceeded to check the source of the light, without discovering that the Passero residence had in fact been burglarized. They eventually passed a white van headed towards the Passero home. As they passed the van on the narrow, snowy road, the police noticed several articles, including two pairs of skis, in the rear of the van and at least two occupants. The van accelerated despite the icy and foggy conditions. The police turned around and without siren or lights gave pursuit, and after chasing the van several miles, brought it to a stop in neighboring Barrett Township. Sergeant Fluegel testified at the suppression hearing that when the vehicle was stopped, the occupants were not free to leave, and that he observed the driver switch positions with one of the passengers. Miranda warnings were given to all occupants. After occupants told of several conflicting stories, one of which inculpated all six occupants of the van in the Passero burglary, the occupants were placed under arrest and the van was searched.

Appellant contends that the police were outside their jurisdiction and without probable cause when they pursued him and the other defendants. Since 42 Pa.C.S.A. § 8953(a)(2) requires probable cause for the police to pursue outside their jurisdiction, the arrest, appellant contends, was illegal ...


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