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08/26/97 COMMONWEALTH PENNSYLVANIA v. DAVID WILLIAM

August 26, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
DAVID WILLIAM MUNDORF, JR.



Appeal from the Order in the Court of Common Pleas of Allegheny County, Criminal Division, No. CC95144440. Before DAUER, J.

Before: Tamilia, J., Ford Elliott, J., and Brosky, J.

OPINION PER CURIAM:

Filed August 26, 1997

The Commonwealth presents this appeal from the July 23, 1996 Order granting appellee's motion to suppress evidence related to his stop for a traffic offense and subsequent arrest for driving under the influence of alcohol. The facts of this case, which are not in dispute, are set forth by the trial court as follows.

Matthew Porter is a police officer with Allegheny County Port Authority. In that capacity, on October 6, 1995 at 8:50 [p.m.], Porter was proceeding from the Gateway Subway Station in the downtown section in the City of Pittsburgh to the East Liberty Garage. Both the Subway Station and the garage are operated by the Port Authority. Porter was driving along Fifth Avenue on the outbound bus lane used by Port Authority buses when he encountered defendant, in front of him, also driving in the outbound bus lane. At that point, Fifth Avenue is three lanes. In addition to the outbound bus lane, there are two inbound lanes open to regular traffic. Fifth Avenue was built, and is owned and maintained, by the City of Pittsburgh. Officer Porter stopped defendant for driving in a restricted lane, a summary offense in violation of the Vehicle Code, 75 Pa.C.S. 3309. Officer Porter's police report (entered into evidence by way of stipulation at HT-3) in part states:

On the date above, at approximately 8:50 p.m., (I) was on routine patrol when I came across a vehicle PA Reg. ATB 3676 operating in a restricted lane (bus lane). Upon pulling this vehicle over, the car pulled up into the raised sidewalk. After approaching the vehicle, the driver had a difficult time locating his driver and vehicle information. The driver also exhibited stuttered speech, watery bloodshot eyes and an odor of alcoholic beverages.

Officer Porter administered a field sobriety test to defendant and placed him under arrest for Driving Under the Influence of Alcoholic Controlled Substance Supra.

(Slip Op., Dauer, J., 8/29/96, pp. 2-3; citations omitted.)

On March 14, 1996, appellee filed an omnibus pretrial motion to suppress all evidence related to the traffic stop and arrest on the basis that Officer Porter, as a Port Authority Transit (PAT) Officer, exceeded his statutory authority. By Order dated July 23, 1996, the trial court granted appellee's motion and this appeal followed.

As recognized by the trial court, the Commonwealth and PAT as amicus curiae, *fn1 our resolution of this case is governed by the Railroad and Street Railway Police Act (Act), 22 Pa.C.S. §§ 3301 et seq. Section 3301 is the empowerment provision of the statute and states as follows:

§ 3301. Appointment

A corporation owning or operating a railroad or street passenger railway in this Commonwealth, including also an authority existing pursuant to Article III of the act of January 22, 1968 (P.L. 42, No. 8), known as the "Pennsylvania Urban Mass Transportation Law," for its entire transportation system, and including an authority existing pursuant to the act of April 6, 1956 (1955 P.L. 1414, No. 465), known as the "Second Class County Port Authority Act," may apply to the Commissioner of the Pennsylvania State Police upon such forms as he shall prescribe for the appointment of specific persons as the applicant may designate to act as railroad or street railway policemen for it. The commissioner, after such investigation as he shall deem necessary, shall recommend to the Governor the commissioning of such persons as railroad or street railway policemen or advise the applicant of their adverse recommendations and the reasons therefor. The Governor, upon such application and recommendation, may appoint such persons to be railroad or street railway policemen, and shall issue to such persons so appointed a commission to act as such policemen.

Id. (footnotes omitted). Under section 3303(a), the authority of railway policemen ...


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