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COMMONWEALTH PENNSYLVANIA v. BRIAN L. SWITZER (06/17/88)

filed: June 17, 1988.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
BRIAN L. SWITZER, APPELLEE



Appeal from the Order of the Court of Common Pleas of Dauphin County, Criminal at Nos. 1533, 1533(A), C.D. 1986.

COUNSEL

Yvonne A. Okonieski, Deputy District Attorney, Harrisburg, for Com., appellant.

William T. Tully, Harrisburg, for appellee.

Cavanaugh, Olszewski and Popovich, JJ.

Author: Popovich

[ 375 Pa. Super. Page 138]

This is an appeal from the Order of the Court of Common Pleas of Dauphin County, Criminal Division, entered October 7, 1986, granting appellee's, Brian L. Switzer's, motion to suppress evidence. We reverse.

On May 26, 1986, appellee was arrested for driving under the influence of alcohol (75 Pa.C.S.A. § 3731(a)(1-4) and driving a vehicle at an unsafe speed (75 Pa.C.S.A. § 3361) by Officer Eric P. Kessler of the Pennsylvania State Capitol Police (hereinafter referred to as "Capitol Police"). Initially, Officer Kessler, while on duty and coming from a state facility near 16th and Chestnut Streets in Harrisburg, observed appellee, who was driving a pick up truck, run a red light at the intersection of 15th and State Streets. Officer Kessler then followed appellee on State Street from 15th to

[ 375 Pa. Super. Page 13913]

    th Streets when both stopped for a red light. Officer Kessler then continued to follow appellee who was traveling over the State Street Bridge at an excessive rate of speed. Officer Kessler determined that appellee was traveling at approximately 60 miles per hour in a 35 miles per hour zone. Upon crossing the bridge, appellee was stopped by Officer Kessler on 7th Street in the vicinity of a number of State owned facilities.

Officer Kessler approached appellee's truck in order to converse with appellee. He observed appellee's eyes to be "red, glassy and dilated" and noted an odor of alcoholic beverage. (N.T., October 7, 1986).

Appellee failed a field sobriety test which was administered by Officer Wass of the Capitol Police. Officer Kessler asked appellee if he would agree to take an intoxilyzer test. Officer Kessler then placed appellee in the rear of his police car and gave him his Miranda warnings. Appellee admitted to being at a bar for two (2) hours prior to the stop in question and drinking six (6) gin and tonics. Appellee was transported to the Harrisburg Police Department, where he was given an intoxilyzer test.

On October 7, 1986, a hearing was held before the Honorable John C. Cherry on appellee's omnibus pre-trial motion to suppress evidence, i.e. Officer Kessler's observations concerning appellee's physical condition, field tests, statements and chemical breath test results. The lower court granted appellee's motion. This appeal followed.

The Commonwealth presents two issues for our review on appeal: (1) whether the lower court erred in suppressing evidence based upon Capitol Police's lack of primary jurisdiction; and, (2) whether the lower court erred in holding that the Municipal Police Jurisdiction Act (42 Pa.C.S.A. § 8951 et seq.) does not apply to Capitol Police.

Before discussing the merits of the Commonwealth's claims, we must determine whether the Order appealed

[ 375 Pa. Super. Page 140]

    from in the instant case is final. In Commonwealth v. Dugger, 506 Pa. 537, 545, 486 A.2d 382, 386 (1985), the Pennsylvania Supreme Court held:

[T]he Commonwealth's appeal of a suppression order is proper as an appeal from a final order when the Commonwealth certifies in good faith that the suppression order terminates or substantially handicaps its prosecution.

Since the record shows that the certification requirement has been satisfied in the case at bar, we hold that the Commonwealth has an absolute right of appeal to this Court to test the validity of a pre-trial suppression order. Id.

In Commonwealth v. Hubble, 509 Pa. 497, 504 A.2d 168, 171 (1986), the Court identified the appropriate standards of appellate review of a suppression court's rulings:

On review, our responsibility is 'to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings.' Commonwealth ...


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