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COMMONWEALTH PENNSYLVANIA v. GARY LEO MONTGOMERY AND SAMUEL TRIBUIANI (12/16/86)

decided: December 16, 1986.

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



Appeal from the Order of April 19, 1986 of Superior Court at 3557 Philadelphia 1982 and 1163 Philadelphia 1983, affirming the Judgment of the Court of Common Pleas of Montgomery County at 1133, 1134, 735, 758 of 1982, entered on November 17, 1982; Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. McDermott, J., filed a concurring opinion. Zappala, J., filed a dissenting opinion.

Author: Larsen

[ 513 Pa. Page 140]

OPINION OF THE COURT

The issue presented for our consideration in this case is whether the Intra-State Hot Pursuit statute, 42 Pa.C.S.A. § 8901, as it existed prior to its repeal in 1982, authorized an extraterritorial arrest for which probable cause arose after the pursuing officer had crossed the territorial limit of his political subdivision.

Several wealthy neighborhoods in Abington Township, Montgomery County, had been subjected to more than a score of burglaries, netting the perpetrators large amounts of jewelry, silver, furs, artwork, cash and curios, when township police set up a special surveillance team in February of 1982. A gray cadillac bearing New Jersey license plate 879-SDX was spotted at 7:00 p.m. on February 20 in a section of darkened residences. One police officer positioned himself in an unmarked vehicle to keep the cadillac in sight, for it had been observed the night before operated by two white males, driving slowly back and forth through the high risk neighborhoods. The vehicle had also been observed parked near the scene of a prior attempted burglary. The officer in the unmarked vehicle saw an individual dressed in dark clothing getting into the cadillac and driving away. These facts are sufficient for a "Terry."

[ 513 Pa. Page 141]

    having burglarized and confirming victims' inventory lists.

A suppression hearing was held in the Court of Common Pleas of Montgomery County on November 16-17, 1982. The suppression court ruled that, although the police officers were acting in "consummate good faith," the arrest was illegal in that it violated 42 Pa.C.S.A. § 8901, which at the time provided:

Intra-State Hot Pursuit

Any police officer of any political subdivision may arrest with or without a warrant any person beyond the territorial limits of such political subdivision for a summary or other offense committed by such person within such political subdivision if the officer continues in pursuit of such person after commission of the offense. The police officer shall exercise under this section only the power of arrest which he would have if he were acting within the territorial limits of his political subdivision.*fn1

The suppression court also determined that the taint of the arrest had not been attenuated by events occurring subsequent to the arrest. Thus, the court suppressed the statements made by appellees concerning the Abington Township burglaries, thereby effectively precluding prosecution therefor. Properly treating the issue of illegal arrest as one of first impression, Superior Court (per McEwen, J., Tamilia, J., and Hoffman, JJ.) affirmed. Commonwealth v. Montgomery, 341 Pa. Super. 573, 492 A.2d 14 (1985).

We granted the Commonwealth's Petition for Allowance of Appeal to consider (1) whether the arrest was illegal, and (2) if so, whether the exclusionary rule requires the suppression of evidence obtained from an arrest made contrary to legislative rule, but within constitutional parameters. In Commonwealth v. Mason, 507 Pa. 396, 406 n. 2, 490 A.2d 421, 426 n. 2 (1985), we expressly reserved the question of "whether the Pennsylvania Constitution itself, Article I, Section 8, would compel the exclusion of evidence obtained in violation thereof, [or] whether a state constitutional

[ 513 Pa. Page 143]

    exclusionary rule would be applied in a manner co-extensive with its federal counterpart." This case appeared at first blush to give us the opportunity to address these important exclusionary rule issues.

A careful review of the record, however, reveals that the Commonwealth did not properly preserve the exclusionary rule issue, therefore we are constrained from considering it herein.*fn2 We have stated elsewhere that "[t]he failure to preserve an issue on appeal will be excused only when a strong public interest outweighs the need to protect the judicial system from improperly preserved issues. (See, Commonwealth v. McKenna, 476 Pa. 428, 383 A.2d 174 (1978) -- appeal permitted to insure that capital punishment comports with the United States Constitution)." Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 224, 489 A.2d 1291, 1301 (1985). We do not find a sufficiently ...


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