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COMMONWEALTH PENNSYLVANIA v. RALSTON W. MERCHANT (02/06/89)

submitted: February 6, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
RALSTON W. MERCHANT, JR., APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Allegheny County, Criminal Division, at No. 8713284A.

COUNSEL

James A. Ashton, Pittsburgh, for appellant.

Scott A. Bradley, Assistant District Attorney, Washington, for Com., appellee.

Brosky, Melinson and Watkins, JJ.

Author: Brosky

[ 385 Pa. Super. Page 266]

This is an appeal from judgment of sentence imposed upon appellant after his conviction for driving under the influence.

Appellant was arrested in Aspinwall Borough by a police officer of a neighboring municipality, Etna, who drove through Aspinwall on a "routine patrol." Appellant raises one issue for our resolution: whether the trial court erred in not granting appellant's motion to suppress due to the stop and arrest being in violation of 42 Pa.C.S.A. ยง 8953. Upon consideration of all arguments, we vacate the judgment of sentence, grant appellant's motion for suppression and remand for a new trial.

On October 21, 1988, appellant was operating a motor vehicle in the Borough of Aspinwall when he was stopped by a police officer of the Borough of Etna. The Etna officer was neither in pursuit of a suspect nor responding to a request for aid but, instead, apparently, was on a "routine

[ 385 Pa. Super. Page 267]

    patrol" of the neighboring borough. Apparently this is a frequent occurrence as the officer testified, "[w]e routinely go through Aspinwall and Sharpsburg." After field sobriety tests were taken, appellant was arrested for driving under the influence and later administered Blood Alcohol Content (BAC) tests. He was later convicted in a bench trial.

We do not have great difficulty in deciding that the arrest in the present case was in violation of the Municipal Police Jurisdiction Act. Curiously, the Commonwealth does not even assert that the arrest was allowed under the Act. In contrast, the trial court asserts that the detention by the police was authorized under subsection (a)(5) of the Act. The portions of the Act relevant to our discussion read as follows:

(a) Section 8953. General Rule. Any duly employed municipal police officer who is within this Commonwealth, but beyond the territorial limits of his primary jurisdiction, shall have the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office as if enforcing those laws or performing those functions within the territorial limits of his primary jurisdiction in the following cases:

(4) Where the officer has obtained the prior consent of the chief law enforcement officer, or a person authorized by him to give consent, of the organized law enforcement agency which provides primary police services to a political subdivision which is beyond that officer's primary jurisdiction to enter the other jurisdiction for the purpose of ...


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