*2 BROSKY, CIRILLO, JJ. Before HUDOCK HUDOCK, Judge: judgment imposed from the of sentence appeal
This is an at the conclusion of guilty, after he was found Appellant upon trial, robbery,1 conspiracy,2 posses- of criminal nonjury of crime.3 was sentenced to sion of instruments (2) not less than two nor more than years consecutive terms of (10) (5) charge robbery, years on the of and ten years five criminal A verdict of charge conspiracy. on the of probation ordered on penalty possession without further was guilty § 1. 18 Pa.C.S. 3701. §
2. 18 Pa.C.S. 903.
3. 18 Pa.C.S. of instruments of crime conviction. Subsequently, Appellant filed a motion for reconsideration of sentence which denied. This direct appeal followed. For the rea- following sons, we vacate the judgment sentence and remand for proceedings consistent with this opinion.
Thé facts leading to these convictions be summarized 80, 1991, as follows: a.m., On October at approximately 1:30 Robertson, Sean a student at University Pittsburgh, was walking home on South Bouquet Street in the Oakland section of Pittsburgh, Pennsylvania, after his visiting girl- friend in her dormitory room on campus. Shortly after pass- ing the University Law, of Pittsburgh School of and near a lot, well-lighted parking Robertson was approached from be- hind by males, two black males. One of the black Kevin (hereinafter, Roberts “Appellant”), took a steps few in front of Robertson and then turned around. Appellant, simultaneous- ly, pulled out a kitchen knife with a 10-12 inch blade and a *3 wooden handle and ordered Robertson to give him his money. Robertson, While Appellant confederate, spoke Appellant’s John Thompson, proceeded to jacket check Robertson’s pants pockets. He removed from Robertson pack of Viceroy cigarettes, keys and Robertson’s student keys I.D. The were subsequently placed back pocket. Robertson’s Robertson was not carrying any money. While this incident was occur- Smith, ring, Officer Curtis of the University of Pittsburgh Campus Police Department, passed the three individuals on street his marked unit. He slowed down to observe what was transpiring as he was suspicious of the very close of the proximity three individuals and the distressed look on Robertson’s face. Officer Smith proceeded down the street, turned his vehicle around and returned to where he had seen the three standing. individuals At this point, Appel- lant and began his friend away to run from Robertson. Rob- ertson flagged down the police vehicle and related to Officer just Smith what had happened. He also described the individ- uals and the items which had been taken from him. Officer Smith immediately pursued Appellant and Thompson across a lot, University parking finally stopping them approximately Officer questioning. Avenue for minutes later on Oakland two he whom the individuals the two males as recognized Smith Robertson’s Robertson. minutes earlier with only had viewed posses- Thompson’s I.D. were found cigarettes and student forty yards approximately later found sion. The knife was had Thompson which Appellant in the lot away parking to the transported were Appellant Thompson traversed. they where Police station Pittsburgh Campus of University delivered subsequently and then were identified Robertson City Pittsburgh of Police. to the is whether by Appellant the sole issue raised appeal, On to suppress move failing trial counsel was ineffective arrest. illegal an the fruit of as Appellant identification subject to a are of counsel of ineffectiveness Claims three-part analysis: claim is underlying
First,
it must be demonstrated
Next,
whether
it must be determined
merit.
arguable
basis de-
reasonable
of action had some
counsel’s choice
a show-
Finally,
client’s interests.
to effectuate his
signed
preju-
action
choice of
made of how counsel’s
ing must be
that counsel was
The law presumes
diced the client....
ineffectiveness
effective,
establishing
so that the burden of
omitted.]
[Citations
the defendant.
squarely upon
rests
417, 420,
Nelson,
567 A.2d
Pa.Super.
Commonwealth
ineffectiveness,
from the
To prove prejudice
an adverse
errors had
must show that counsel’s
v. Boyles,
Commonwealth
on the outcome of the trial.
effect
alloc,
den.,
343, 358,
1180, 1188
595 A.2d
*4
(1992).
651,
must show
appellant
As noted Appellant contends that trial counsel rendered failing ineffective assistance of counsel for to file a motion to suppress the identification of which was made subsequent to an that illegal Appellant argues arrest. Smith, illegal police arrest was because Officer a campus officer, acted beyond jurisdiction making the limits of his in as both the incident arrest, and the arrest question occurred off campus. Conversely, the Commonwealth con tends that the question events in did occur on immedi and/or ately adjacent University brief property. Commonwealth at p. Accordingly, the Commonwealth concludes that Officer Smith had jurisdiction to effectuate the arrest of alternative, that, Appellant. In argues the Commonwealth even if the events in and the arrest on the question occurred city streets and not on campus because of property, noncontiguous nature of the University Pittsburgh campus layout because the of the campus necessitates that drive on streets police city among various commercial private and residential enterprises properties while on routine patrol, Officer Smith had an affirmative when duty felony he saw a committed on his patrol pursue the perpetrators.
After examining Appellant’s argument, the record and we are constrained to conclude that there is merit arguable trial counsel was ineffective. See Appellant’s contention that 646(h) 71 P.S. Police (“Security Campus shall exercise powers their and perform their duties on the only premises of universities, colleges State State aided or related colleges and universities and community colleges by or for which they are ... employed except, Campus Police employed by State owned colleges and universities located any municipalities, other than cities of the first class or second class, authorized, are in emergency situations within occurring the municipality, upon the request or mayor other authority executive and under the direction of the local law authorities, enforcement to exercise powers perform those
161
conferred
to this section within
pursuant
those duties
aiding
for the limited
local authorities
municipality
purpose
situations.”);
Savage,
in
v.
403
emergency
Commonwealth
633,
den.,
446,
529 Pa.
600
4. The dissent concludes that 71 P.S. 646 did not intend the absurd campus police felony progress, result of a officer who views a while Therefore, an the judgment pending of sentence is vacated conten- evidentiary hearing Appellant’s to determine whether tion to move failing trial counsel was ineffective for *6 identification, illegal the fruit of an suppress which was the arrest, If trial counsel was has merit. it is determined that ineffective, a new thereby, and that was Appellant prejudiced ineffective, however, granted. trial must be If counsel not judgment remanding the of sentence be In reimposed. .determination, underlying for such a we decline to address the We, note, however, merits of in it is the action. that the event university found the incident arrest on did not occur and/or property, by remanding we do not concede that an extra- territorial arrest was under these circumstances. unwarranted
The of sentence is vacated and the case remanded judgment for further consistent with this Jurisdic- proceedings opinion. tion is retained.
CIRILLO, J., files a dissenting opinion.
CIRILLO, Judge, dissenting. I respectfully dissent. Under facts unique presented here, remanding evidentiary for an to determine hearing whether or not the offense took on the place campus premises is I unwarranted. would find due to the liberal construction to § be afforded in applying P.S. the General patrolling non-contingent college campus, jurisdiction a to be without apprehend felony the felon of the because location of where the takes note, however, place. We that the record reveals that Officer Smith did robbery any Appellant not view the actual and did not at time see companion accost the victim with a knife while his removed the Rather, belongings pockets. victim's from his the record indicates that Smith, unit, passing Officer while the individuals in his a saw situation, "suspicious” specifically proximity two black males in close appeared with a male white who to be in distress. This situation Smith, street, prodded proceeding Officer after down the to turn his scene, investigate. Only upon vehicle around and his return to the and him, Smith, fact, after the victim talked to did Officer become aware robbery apprehension that a Appellant had occurred and that and his time, companion was warranted. At this safety victim had reached companion and his had fled. as is consid- result not intend such an absurd did Assembly on officer security a majority ered —that of the who, makeup geographic due to the patrol, routine is egress, ingress public utilize streets campus must a felon while jurisdiction apprehend without possibly location of where on the felony progress depending is takes felony place. must ascertain legislation,
In
this court
construing
1 Pa.C.S.A.
legislature.
effectuate
the intention of the
1921(a).
nature,
be
§
it must
penal
Since section 646 is not
promote
purpose
construed to effectuate its
liberally
Holderman,
1928(c);
Commonwealth
justice. 1
Pa.C.S.A.
of a
A.2d 752
the words
“When
letter of it is
statute are clear and free from all
ambiguity,
spirit.”
not to be
its
pretext
pursuing
under
disregarded
*7
1921(b).
intend a
legislature
§
The
does not
Pa.C.S.A.
1922(1). A
§
result
or
Pa.C.S.A.
impractical.
that is absurd
of section 646 reveals that
it does
review of the text
of
jurisdictional
in the instant case
question
address
the
a felon off
campus security may apprehend
campus
whether
utilizing public roadways
egress
while on routine
and
patrol
patrol.
and
to
the
ingress
effectuate
statutory
explicit,
Where the
definition is not
we
ascer-
legislature by considering, among
tain the intention of the
others,
for
necessity
such factors as the occasion and
the
statute,
enacted,
the circumstances under which it
the
remedied,
attained,
object
mischief to be
the
to be
the conse-
of a
quences
particular
interpretation and the contemporane-
1921(c);
ous
such
legislative history of
statute.
Pa.C.S.A.
Com.,
Memorial,
Ed. Assistance v.
Higher
Abington
478 Pa.
concern over the that results from security. police campus ties on local or state relying Mitchell, supra. only interpret
A which thorough search reveals four cases Savage, In jurisdictional the restraint on campus security. security supra, by majority, campus the sole case cited the concen- the of the local intentionally usurped power police at a local occurring pub their efforts on activities trating so far security the went beyond campus Campus boundaries. car and remained position facing pub as wait, laying until a violation occurred. While stationary light gave run a red campus security Savage witnessed driving charged was also with captured, Savage chase. Once his conviction of the Following under the influence of alcohol. offenses, A of this Savage appealed. panel two summary court, court, the red the trial found that both agreeing with off the and the chase occurred light subsequent violation section campus premises, violating subsequently sup- had to be evidence obtained as a result of his arrest pressed.1 Holderman, of this court was presented
In a supra, panel security could make campus with issue whether arrest outside the boundaries where summary campus campus initial offense occurred on the where the arrest after hot of the offender. security pursuit made construed, liberally panel that section 646 must be Finding *8 lawful concluded that the arrest off was subsequent campus and that the could not have intended to legislature prohibit by only campus Research one other case where an arrest off discloses campus security suppression of evidence. In Common- resulted Dixon, Pa.Super. wealth v. the defendant disorderly public summary offense of on a was arrested for the conduct adjoining campus. road the No facts were offered as to whether security personnel patrol intentionally were on routine or had acted case, usurp authority. distinguishable local Also from the instant parties stipulated prior the the in Dixon to trial that the fact that arresting jurisdiction no the facts make officer had under the arrest. Id. at A.2d at 56. offend- arresting summary from and campus security pursuing campus. fleeing ers Mitchell, court, supra, recognizing again this
Similarly, remedial to effectuate its the liberal construction of the statute could not have intended legislature held that the purpose, security solely limit the to educational jurisdiction campus properties commercial grounds, and residential but also to were used university owned or which college in Mitchell realized investment court purposes. The university, especially when campus properties college of “a or contiguous, may located within a not be but municipality, may municipali- be located in or constitute various sections of the Mitchell, at 547. The ty”. at 554 A.2d otherwise, court stated that to hold of a ignoring layout everyday operation we would be would not college university. legislature or We find the ignored have created it would have a situation where We, ... there- campus realities of the or college university fore, buildings” “grounds conclude that “premises” 646(h) include, statutory within the framework of 71 P.S. areas, academic and residential but also commercial only of a or used for investment property college university purposes.
Id. may contigu- that a not be acknowledging campus While ous, be or constitute various but rather located within sections of did not address municipality, panel specifically an arrest jurisdictional power security to make campus “A,” on routine located on point which occurs between the drive on a street while en campus, during public route to “B” but located point which is also property, in another section of the municipality.
Thus, all these from the readily distinguishable cases are instant facts and presented establish that the situation here is one of impression. Instantly, first we have an officer on routine patrol, who due to the nature of the geographic *9 egress must use routes of
university campus ingress which, adjacent be to not campus property, while are in designated campus roadways, felony as owned who sees a progress and then hotly pursues suspects being the after down the in flagged by compliance victim. These actions are with the intent embodied in the statute legislative governing the do powers of the to effect an arrest and campus security powers the of the authorities as is usurp municipal police prohibited by P.S.
I find public roadway would that an arrest that occurs on a which, to be geographic up campus due the make of the must used while routine is campus security performing patrol Further, lawful and consistent with the intent. legislative such an to activity naturally statutory meaning flows from the I given grounds be protection campus premises. legislature find it absurd that could have intended that campus security on routine are to act powerless while under Requiring campus security such circumstances. campus dispatch contact who in turn must contact local au- thorities crucial time and would waste result possibly Here, physical injury security the victim. did not intentionally local or somehow usurp authority purposefully involve themselves in such conduct that would be out of norm of the routine The officer patrol. happened upon felony robbery progress which included the defendant a 10-12 inch kitchen wielding knife at the victim. The victim was a student at the university, walking home to his apartment just and had walked of Pitts- past University burgh Law School when he was attacked. above,
Unlike cases cited the instant facts establish the of the urgency very situation and at the least the attack adjacent occurred to the university campus. To hold that the location of arrest, the incident could jeopardize the where campus security are on routine patrol, undermines the legisla- objective tive promulgating statute to protect persons and property and to alleviate the burden on local police Mitchell, such, affirm I would supra. As authority. judgment of sentence. *10 Kathryn Phillips,
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