Appellant was arrested September 27, 1984 and charged on November 9, 1984 with three counts of robbery, two counts of receiving stolen property and one count of criminal conspiracy. Appellant filed an Omnibus Pre-trial motion on April 10, 1985 asserting, inter alia, lack of probable cause to stop the car in which appellant was a passenger on the evening of September 27, 1984 and lack of probable cause to arrest. Hearing on that motion, and the trial, were assigned to the Honorable Judge Lee of the Court of Common Pleas. On April 25, 1985, the day of appellant's trial, two co-defendants pleaded guilty before Judge Lee; that same day Judge Lee denied appellant's suppression motion. Nonetheless, appellant waived his right to trial by jury and proceeded to trial without jury before Judge Lee.
Appellant was adjudicated guilty on all but one of the robbery counts. After denial of motion for new trial and/or arrest of judgment, appellant was sentenced on July 21, 1985 to a period of incarceration. This appeal timely followed.
(Trial Opinion at 3-4). Appellant raises three contentions on direct appeal of his conviction: (1) The trial court erred in failing to suppress certain inadmissible evidence; (2) The trial court erred in failing to recuse itself after appellant's codefendants had pleaded guilty before it; (3) The evidence was not sufficient to sustain appellant's conviction. We shall address these issues seriatim.
The appellant first contends that the trial court erred in failing to suppress evidence which was gained by the illegal
Initially we note that our function as an appellate court reviewing a denial of a motion to suppress is to determine:
Commonwealth v. W.P., 302 Pa.Super. 66, 69, 448 A.2d 97, 98 (1982). Moreover, when the evidence viewed in this manner supports the factual finding of the suppression court this Honorable Court can reverse only if there is an error in the legal conclusion drawn from those factual findings. Commonwealth v. Goodwin, 460 Pa. 516, 333 A.2d 892 (1975).
The existence of probable cause is determined by an examination of whether:
Applying the law to the facts of the instant case, the trial court properly found that probable cause existed to validate the stop and arrest. Officer Facciano of the Munhall Police Department, after talking with the victims, broadcast a detailed description of the suspects. He noted the suspects were fleeing in a "brownish early model vehicle" and that of the three "young black males" described by the victims, one was wearing a red shirt, one a blue-gray jogging top. He also noted that the car had fled in the direction of the Rankin bridge. (N.T. at 18-19). Relying on this broadcast information, Officer Karnes of the Whitaker Police Department stationed his marked police vehicle on the Whitaker side of the bridge. From his vantage point he was able to see the car drive by and in the glare of his car beams he specifically noted that one of the four occupants of the brownish car was wearing a blue-gray jogging top. The correlation of the broadcast description with the details the officer observed gave rise to probable cause to stop the vehicle.
Furthermore, the fact that there were four black youths in the car rather than three as broadcast over the police radio does not invalidate the finding of probable cause.
Once he stopped the car in Rankin Borough after it crossed the bridge, the Officer observed other items, further correlating to the broadcast description and further buttressing the probable cause requirements. Commonwealth v. Prengle, supra. Officer Karnes spotted a red shirt "stuffed down between two of the occupants in the rear." (N.T. 26). Thus there is ample evidence on review to affirm the finding of probable cause to arrest.
However, this finding of probable cause will be irrelevant if the arrest was effectuated without proper authorization. The statute conferring jurisdiction on officers making arrests outside of their primary jurisdiction is 42 Pa.C. S.A. § 8953, Statewide Municipal Police Jurisdiction Act. That statute specifies six "cases" or situations wherein officers may act outside their primary jurisdiction. Cases 2, 3, and 6 are applicable in the circumstances of appellant's arrest. They read as follows:
First, under a mutual aid agreement between Munhall and Whitaker Boroughs, the officers of Whitaker had "all the powers and authority conferred by law" that the police of Munhall would have. 53 Pa.C.S. § 46202(35). Second, the officers were requested to aid in apprehending the suspects. 42 Pa.C.S.A. § 8953(a)(3). Thus, jurisdictional authority was properly passed from the Munhall to Whitaker police.
Next, the Whitaker officers were in "hot" or "fresh" pursuit of the suspects as they passed from Whitaker into Rankin Borough. 42 Pa.C.S.A. § 8953(a)(2). The concept of hot pursuit applies even though the officers were not originally at the scene of the crime but initiated their pursuit in response to a radio broadcast to aid a fellow officer. See Commonwealth v. Brown, 298 Pa.Super. 11, 444 A.2d 149 (1982). Moreover, the Whitaker officers had probable cause to believe a felony had been committed, due to the radio broadcast; they attempted to identify themselves as police officers, and then gave chase to the vehicle in a marked police car with the lights flashing and siren sounding. 42 Pa.C.S.A. § 8953(a)(6). This gave Whitaker police authority to conduct the search and arrest in Rankin. Thus the arrest, effectuated outside the borough where the offense occurred, was sustained by valid jurisdiction. Therefore, we deny appellant's contention and affirm the lower court as to this first issue for review.
Appellant's second issue presented for review states that the trial judge should have recused himself in order to
Initially, we must consider the applicable standard of review.
Judge Lee clearly had no doubt of his ability to preside impartially in this criminal case. The question remains as to whether appellant met his burden of proof in asserting that Judge Lee's impartiality can reasonably be doubted. We find that appellant has not met his burden of proof, and thus we affirm Judge Lee's decision not to recuse.
Although our research has not uncovered cases dealing with the issue of recusal of a trial judge under these exact circumstances, there are cases enunciating the standard for when a trial judge presides over the pre-trial suppression hearing. The facts of Commonwealth v. Goodman, 454 Pa. 358, 311 A.2d 652 (1973) are on point. In Goodman, our Supreme Court held that ". . . a judge should honor a request for recusation where prejudicial information is received in a pre-trial proceeding that would be otherwise
Moreover, appellant has failed to demonstrate that Judge Lee, in handing down a conviction of guilt, acted out of "bias, prejudice or unfairness." Perry, supra. We take into consideration two pertinent facts which the trial judge relied upon in his opinion. The first is that the trial judge would have discovered the fact of the co-defendant's guilty pleas when the co-defendants took the stand as Commonwealth witnesses. Appellant's trial counsel knew the Commonwealth intended the co-defendants to take the stand and testify against appellant. The second is that appellant and his trial counsel chose to go forward with a non-jury trial before Judge Lee, armed with the knowledge that Judge Lee had heard the co-defendants' guilty pleas and had decided against recusal. Appellant nonetheless decided to forego his option of trial by jury. Surely appellant and his counsel made a duly informed decision, and impliedly placed trust in the fact that the trial judge had not been prejudiced by this knowledge of co-defendants' guilty pleas. See United States ex rel. Bennett v. Myers, 381 F.2d 814 (3rd Cir. 1967) (Where trial judge had heard co-defendant's guilty plea, decision by counsel to continue with trial before same judge was "an acknowledgment" that trial judge was not prejudiced and constituted no basis for recusal). Accordingly we affirm the lower court with regard to the second issue.
Appellant's third and final contention is that the evidence was insufficient to support the verdict. Our standard on review is that the evidence must be read in the light most favorable to the verdict winner, with all reasonable inference arising therefrom. Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984); Commonwealth v. Madison,
Judgment of Sentence AFFIRMED. Jurisdiction relinquished.