*3 SOLE, CAVANAUGH, and DEL JJ. Before WIEAND CAVANAUGH, Judge: entered in appeal judgment
This is an from a sentence sentencing County, the Court of Common Pleas of Chester (23) month appellant thirty day twenty-three the to a to Driving his following term of incarceration conviction the Influence of Alcohol. Under We reverse. 3, 1986, Park evening August Valley Forge
On the Ranger appellant stop John Bandurski observed the run a sign park. within the confines of the He activated his and the until emergency lights pursued appellant and siren his sedan to a brought yellow stop approximately the latter mile the limits. This area one-quarter beyond park was of Tredyffrin Township. Ranger within boundaries approached appellant, Bandurski then had exited who vehicle, his speech noted had slurred and the “[h]e smell of alcohol on his breath.” advising appel- After (an stop sign lant his failure to at the traffic assertion denied), Ranger the appellant which Bandurski asked him to a submit to field test. such sobriety Three tests were administered, two appellant of which the failed. Ranger Bandurski then in dispatcher contacted his an effort with Tredyffrin Township communicate as well toas secure assistance from an park ranger. additional Approximately thereafter, minutes Ranger Reilly two five Paul Tredyffrin Police Township Stephen Officer Dintino and his shift sergeant being arrived at the scene. After advised intoxicated, appellant might Officer Dintino proceeded to his administer own tests. sobriety upon Based of the foregoing, results the appellant placed under arrest.1 He was subsequently advised of Miranda warn- ings and of the Pennsylvania Implied provision Consent connection with a he request submit testing chemical of his blood. The appellant refused to comply, whereupon was transported he to the Tredyffrin Township police sta- tion and township advised policy regarding video taping persons arrested for Driving Under Influence. Prior taping, appellant requested the assistance of a Public Defender. both Accordingly, and Offi- cer attempted Dintino County contact the Chester Public Defender by various methods but were unsuccessful their efforts. proceeded Officer Dintino then film he performed as gaze a horizontal nystagmus test *4 a and walk and turn Prior test. to taping, appellant the was not of rights time, advised his Miranda a second but the warnings were administered during the course of the film- ing. Several months later preliminary hearing at a held on 1, 1986, appellant October the was held court on the charge Driving (75 of Under the Influence Pa.C.S.A. trial, eyes 1. At Officer Dintino testified that defendant’s "[t]he red, bloodshot”, “slurred, glassy speech mumbled”, and that his was was ... obscene” and that his ”[h]e "balance was unstable as he walked as he and stood.” The officer further detected an "odor of beverage” appellant’s alcoholic on the breath. hearing conducted was 3731(a)).2 pretrial suppression A § of 9-10, 1986, at the conclusion which on December Quash Motion to appellant’s denied the hearing court hearing was grounds. Said jurisdictional indictment on court 7, 1987, at time the which January until continued Suppress concerning remaining Motion denied the 9, January trial on jury conclusion of the At the videotape.3 Driving Under 1987, convicted appellant was on Motions Following the denial of Post-Verdict Influence. thirty to a 1987, sentenced appellant was July term of incarceration and (23) month twenty-three day a fine the amount pay required further was of sen- judgment from the $1,500.00.4 appeal This is an tence. our considera- raised for following issues have been
The tion: held that the extra-territo- err he
Did the trial court when ranger federal was by park the defendant a rial arrest of proper? tape he ruled that the video court err when
Did the at trial? of field test was admissible defendant’s third set claim, a appellant’s first find no merit we While controlling authority of the record thorough review erred in the trial court conclusion leads us to the Accordingly, we evidence. failing suppress below. judgment reverse ar the extraterritorial initially It is contended Bandurski was with- Ranger insofar as improper, rest was court on a violation of 75 Pa.C.S.A. appellant was also held for 2. The duty 3323(b) imposing a to observe (provision the vehicle code § stop conditions). right way specified signs yielding under August guilty the court on of this offense The was found 6, 1987. Quash Motion to re- at this time that the While the court noted 3. disposed of on open, reveals that said motion the record mained December 1986. pay prosecution and requested to the costs of appellant was also 4. The With drug and treatment. himself to evaluation directed to submit respect 3323(b), under 75 Pa.C.S.A.§ to the conviction pay costs. and ordered $25.00 was fined in the amount *5 appellant out to detain jurisdiction beyond the bound- park. aries of the federal While the char- appellant would arrest, acterize his appear detention as an it would from the record the actual arrest effectuated by Officer subsequent Dintino to the set second of field tests. sobriety Notwithstanding foregoing, peradventure it is beyond Ranger apprehend Bandurski was authorized to in the circumstances at bar. la-6(a)(l):
Pursuant to 16 U.S.C.A. § personnel la-6. Law enforcement within National § System Park
(A) Designation of authority Secretary; powers and duties designees
In addition any law, to other conferred authority Secretary the Interior is authorized designate, pursuant regulations standards described in by the Secretary, certain or employees Depart- officers ment Interior who law shall maintain and order protect persons property within areas National Park System. In the such performance of duties, or employees, so designated may— officers
(1) carry and make arrests without warrant firearms any against the United States committed in offense his presence, or for any felony cognizable under the laws of the United if States he has grounds reasonable believe that the person be arrested has or is committed committing provided such arrests occur felony, such person within or system is arrested fleeing arrest; to avoid therefrom (emphasis added.)
According to the testimony trial, elicited at Ranger Bandur- ski observed the run a sign stop within the of Valley Forge confines Park. He pursued thereafter appellant until latter brought stop vehicle to a beyond park limits. We agree with the lower court that Ranger while is jurisdiction Bandurski without to effectuate an arrest Tredyffrin Township, point “the of arrest should be determined to be the location ranger] where [the not stop appellant] his intent where
indicated
[the
[the
*6
stop ...”
chose to
Had the detention
actually
appellant]
no
question
on
there would be
park property,
occurred
the
have
entitled to arrest
Ranger Bandurski would
been
Thus,
of
“set in motion”
process
the
arrest was
appellant.
(i.e.,
Ranger
jurisdic-
limits
Bandurski’s
park
within
within
tion)
the
terminated
those
process
beyond
and the fact that
actions)
(due
appellant’s
to the
is irrelevant.
solely
limits
Gamer,
noted in Commonwealth v.
314
As this court
566,
police
302
officer of
“Any
461 A.2d
Pa.Super.
any person beyond
arrest
the
political
may
subdivision
any
summary
of such
subdivision for a
political
territorial
limits
such
such
by
person
or other offense committed
within
in
of
pursuit
if the officer continues
political subdivision
Id.,
of the offense.”
314
person after commission
such
569-570,
42
(citing
§ (a) municipal police Any duly employed General rule. — Commonwealth, beyond officer who is within this but territorial limits of his shall have the primary jurisdiction, authority and to enforce the laws of this Common- power of office perform or otherwise wealth functions if those or those functions enforcing performing as laws in primary jurisdiction the territorial limits of his within following cases: [******] person is in hot pursuit any Where the officer committed, which was or which he has any for offense committed, within his probable cause to believe was which primary jurisdiction officer offense pursuit person continues fresh after commission offense. added.)
(emphasis Ranger It is Bandurski in “hot pursuit” obvious appellant as evidenced the circumstances of the case. Moreover, though even the foregoing discussion focuses (as federal) law, upon Pennsylvania opposed to the rationale behind Commonwealth statutes is identical to that which Accordingly, underlies U.S.C.A. la-6. we find no § merit in the Ranger claim that Bandurski was without legal authority apprehend appellant.
The challenges next the lower court’s failure to suppress of sobriety third set tests. The has framed this claim in fifth and both sixth appellant’s amendment terms. We conclude that the fifth amendment and rights sixth amendment violated.
It
sobriety
not,
is well settled that field
tests do
of themselves,
implicate
the fifth amendment. As we
*7
v.
in
Romesburg,
Commonwealth
observed
353
Pa.Super.
215,
(1986),
The test procedure was structured so that Mr. Conway compelled thought was to reveal his processes by asking instructions, clarification some of the officer’s his statements in thereto response manifest his confusion. arguably sign intoxication, Because confusion is a Mr. was forced to incriminate Conway himself 'communi- cating’ his confusion while performing tests. Id., Ct. at 534 A.2d at Pa.Superior 546. bar,
In the case at the appellant forced to was undergo sobriety filmed exercises. The of the transcript portion performance audio that the subject reveals and uncooperative, was obscene and that he repeatedly upon commented of legal representation. absence While his statements were not responsive direct interro gation, as in the case of we are none Conway, supra, theless convinced that the cir compelled by was cumstances Arguably, to utter them. and belli obscenity gerence are as of an just thought indicative individual’s In processes instances, as is confusion. both individual control, is a lack exhibiting jury and a could reasonably conclude that this manifests some level of intoxication. For reasons, controlling above we find to be Conway case sub Since the judice. compelled incriminate himself in a or testimonial communicative man *8 ner, his rights abridged fifth amendment by Officer Dintino’s failure warnings to administer Miranda immedi ately prior taping. to the
It is clear from the record that defense counsel ac- quiesced presenting portions video and audio tape audio, to the for tactical reasons. jury On the appellant can be heard an demanding attorney. Cognizant of the fact that he could upon not comment these requests, attorney suggested Commonwealth’s that the sound be turned off the tape presented when was to the As the jury. brief, notes in his placed this defense counsel in position “the untenable of having to decide between two jury undesirable either to hear the strategies:” allowing the appellant’s comments and credence to the thereby give treatment, he rightfully claim that was at or annoyed to simply permitting jury “angry view his and frustrat- gestures and with no responses” ed evidence the audio which elicited such responses. Accordingly, commands entire agreed tape played counsel that the should be at trial. following exchange prior The occurred the presentation to the videotape: THE COURT: I want a waiver on the record with regard right to his invoking his have counsel.
MS. My agreed SMITH client has [defense counsel]: particular right. waive this
However, I like the would record to that we don’t— show process, original are not waiving argument we which we all of made about this. in,
If it’s going to come that right. we will waive MR. Well, HALL district I would attorney]: [assistant like suppression the record reflect that after the hear- ing, it was the opinion Commonwealth’s the sound should be off of the turned video and would have done so but for the trial tactic the defense attorney.
THE COURT: Let me Okay. you know when are ready. above,
In light of the it is fairly obvious counsel preserving original was her objections tape with the exception of those portions where the invoked his right Therefore, to counsel. the Commonwealth’s conten tion that the appellant waived his right challenge the attorney agreed since his could present that it ed to the jury is without merit.
In
v.
608 ing suppressed must he voluntary, be unless made a know- ing intelligent rights his receiving waiver of after warnings.” supra, Pa.Superior Miranda 373 Waggoner, 30-31, 540 In Ct. at A.2d at 284. the judice, case sub also his rights advised of during course but, session far from waiving those rights, it appears continually objected that he to absence of Accordingly, counsel. we find Waggoner to on directly point.
In light holding in Waggoner, supra, we conclude sixth appellant’s rights amendment were violated. The police to interrogate appellant continued he after repeatedly requested counsel. Because had been arrested prior right to the videotaping, his counsel had attached. This failure warrants supply suppression counsel the videotape.
Having found that the fifth appellant’s amendment rights Officer Dintino’s violated failure administer warnings Miranda prior filming his test performance, we conclude in refusing lower court erred to suppress Moreover, the tape evidence. court erred in lower refusing suppress as tape appellant’s right to counsel had clearly been violated. reverse Accordingly, we judgment below.
Reversed and remanded for further proceedings consist- opinion. ent with this Jurisdiction relinquished. J.,
WIEAND, concurring files a and dissenting opinion. WIEAND, Judge, concurring and dissenting: I agree with majority park ranger had jurisdiction arrest appellant for driving while under the However, I influence of alcohol. disagree with the decision to award a new trial.
In
Bruder,
my judgment, Commonwealth v.
365 Pa.Su-
per. 106,
A.2d
528
1385
Peth,
Commonwealth v.
374
542
Pa.Super.
A.2d 1015
as well as Com-
Pa.Super. 488,
monwealth v.
368
534 A.2d
Conway,
*10
Waggoner,
23,
and Commonwealth v.
Pa.Super.
decided. Evidence
incorrectly
v. Division, CENTER, ALBERT Northern EINSTEIN MEDICAL Organization Pennsylvania, the Health Maintenance David Rosenthal, M.D., Cohen, Perry Dornstein, M.D., E. L. Erwin M.D., Appellees.
Superior Pennsylvania. Court
Argued June 1988. Sept. Filed 1988.