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HomeMy WebLinkAboutCP-21-CR-0003416-2010 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : CARLA JACKSON : CP-21-CR-3416-2010 IN RE: OMNIBUS PRETRIAL MOTION OPINION AND ORDER OF COURT Masland, J., June 17, 2011:-- Defendant, Carla Jackson is charged with fleeing or attempting to elude police 123 officer, recklessly endangering another person, driving on roadways laned for traffic, 45 driving vehicle at safe speed, and reckless driving resulting from an incident on September 26, 2010. She filed an omnibus pretrial motion seeking to dismiss all of the charges for lack of jurisdiction to arrest and to suppress evidence based on a lack of reasonable suspicion. A hearing was conducted on June 13, 2011. Findings of Fact 1. Approximately one month before the date of the offenses at issue, on August 28, 2009, Corporal James Swartz of the Newville Borough Police Department cited the defendant for five traffic violations including driving under 75 Pa.C.S. Section 3733(a). 1 18 Pa.C.S. Section 2705. 2 72 Pa.C.S. Section 3309(1). 3 75 Pa.C.S. Section 3361. 4 75 Pa.C.S. Section 3736(a). 5 CP-21-CR-3416-2010 suspension based on her license having been suspended in Florida for failing to pay traffic citations. 2. On September 26, 2010, Corporal Swartz was engaged in a high speed pursuit which led him out of Newville Borough and into West Pennsboro Township, which is outside of his jurisdiction. 3. Corporal Swartz was unable to find the subject vehicle and terminated his pursuit. 4. While Corporal Swartz was returning to Newville, travelling westbound on Route 641, he observed the defendant’s vehicle travelling eastbound near Greenhill Road in West Pennsboro Township. 5. The corporal travelled a distance of approximately 100 meters and performed a U-turn in order to “positively identify the identity of the driver;” however, the corporal clearly testified on cross-examination that he not only immediately recognized the vehicle but was able to positively identify the driver as the defendant. 6. Upon performing the U-turn and heading eastbound on 641, Corporal Swartz lost sight of the defendant’s vehicle and surmised that the defendant had accelerated because she had identified him as well. 7. Corporal Swartz stopped his vehicle in the intersection of Crossroad School Road and Route 641, and caught sight of the defendant travelling southbound on Crossroad School Road. 8. Corporal Swartz pursued at a high rate of speed and caught up to the defendant’s vehicle shortly before two S-curves. -2- CP-21-CR-3416-2010 9. Corporal Swartz was unable to assign a speed to defendant’s vehicle, but was confident that it was well over the speed limit of 35 miles per hour. 10. Although both vehicles slowed down for the S-curves, the defendant was unable to negotiate the second curve resulting in her vehicle losing control and rolling about 50 to 60 yards into a large yard. 11. The Trooper Scott Bowes of the Pennsylvania State Police responded to the scene shortly thereafter and after observing the damage and conducting an investigation, filed the aforesaid charges against the defendant. 12. At no time during the pursuit did Corporal Swartz know of the status of defendant’s license. 13. Notably, the defendant was not charged by Trooper Bowes with driving under suspension, the offense for which Corpora Swartz was pursing defendant’s vehicle. Discussion Defendant seeks dismissal of all charges because “Corporal Swartz acted outside of his jurisdiction and not under any of the Sections which would give him power to attempt an arrest.” See 42 Pa.C.S. § 8953. Defendant is correct that Corporal Swartz lacked authority under the aforesaid statute. In fact, the only conceivable basis for Corporal Swartz to have the “power and authority to enforce the laws of the Commonwealth” outside of his jurisdiction is under the following Section: Where the officer is on official business and views an offense, or has probable cause to believe that an offense has been committed, and makes a reasonable effort to identify himself as a police officer and which offense is a felony, misdemeanor, breach of the peace or other act which -3- CP-21-CR-3416-2010 presents an immediate clear and present danger to persons or property. 42 Pa.C.S. § 8953(a)(5). The only offenses which Corporal Swartz viewed were driving under suspension and, arguably, driving vehicle at safe speed, both of which are summary offenses. And, because the offense of driving under suspension was the impetus for Corporal Swartz’s U-turn and hot pursuit, there was no offense or act “which presents immediate clear and present danger to person’s or property.” In short, Corporal Swartz should have returned to the station and contacted the Pennsylvania State Police (the law enforcement agency with jurisdiction and authority to act in West Pennsboro Township) and notified them of a potential violation of the Vehicle Code with respect to defendant’s driving under suspension. Had he done so, he would have also had time to discover that whatever facts and circumstances gave rise to the citation for driving under suspension on August 28, 2010 no longer existed on September 26, 2010. Although we agree that Corporal Swartz acted outside his jurisdiction, we do not accept defendant’s argument that all charges should be dismissed. To the extent that the defendant allegedly accelerated upon seeing Corporal Swartz, we cannot conclude that she would have negotiated the S-curves safely but for the officer’s pursuit. And, regardless of Corporal Swartz’s extra jurisdictional actions, the fact remains that the investigation of Trooper Bowes uncovered sufficient evidence for him to file the aforesaid charges, with one exception. In the absence of any basis to pursue the defendant’s vehicle, we find the charge of fleeing or attempting to elude police officer to be a nullity, and therefore we dismiss the same. Although defendant’s “but for” argument may ultimately be persuasive, it is not dispositive at this stage. Therefore, we -4- CP-21-CR-3416-2010 permit the Commonwealth to proceed on the remaining counts in the information. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this day of June, 2011, the omnibus pretrial motion IS GRANTED IN PART. IS GRANTED of the defendant Defendant’s motion to dismiss IS with respect to Count 1, fleeing or attempting to elude. The motion to dismiss DENIED with respect to all other charges. By the Court, Albert H. Masland, J. Daniel Sodus, Esquire Assistant District Attorney Vincent M. Monfredo, Esquire For Defendant :saa -5- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : CARLA JACKSON : CP-21-CR-3416-2010 IN RE: OMNIBUS PRETRIAL MOTION ORDER OF COURT AND NOW, this day of June, 2011, the omnibus pretrial motion IS GRANTED IN PART. IS GRANTED of the defendant Defendant’s motion to dismiss IS with respect to Count 1, fleeing or attempting to elude. The motion to dismiss DENIED with respect to all other charges. By the Court, Albert H. Masland, J. Daniel Sodus, Esquire Assistant District Attorney Vincent M. Monfredo, Esquire For Defendant :saa