J-S59020-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LENO D. MESCOLOTTO
Appellant No. 3209 EDA 2013
Appeal from the Judgment of Sentence October 24, 2013
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-SA-0000210-2013
BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 10, 2014
Leno D. Mescolotto appeals from the judgment of sentence entered in
the Court of Common Pleas of Lehigh County following his conviction for
speeding. Upon review, we affirm.
The trial court summarized the facts of this matter as follows:
On May 1, 2013, Officer Nathan Schlegel of the Upper Macungie
Township Police Department was monitoring traffic on a portion
of State Route 222 (SR-222) that runs through Upper Macungie
Township (Township). The Township has entered into an
intergovernmental agreement with the Pennsylvania State Police
(PSP) granting the Township the authority to enforce speed
restrictions on portions of SR-222.
At approximately 10:00 AM, Officer Schlegel was utilizing a
VASCAR-plus® III speed timing device, which was approved by
the Department of Transportation and was tested for accuracy
on April 1, 2013. Schlegel observed a silver Mercedes Benz
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S59020-14
E350m, bearing registration number HTB3223, traveling
southbound on SR-222 and timed the vehicle traveling 75 miles
per hour. The posted speed limit in that area is 45 miles per
hour. Schlegel initiated a traffic stop. Before Schlegel could get
out of his vehicle, the driver of the Mercedes, later identified as
[. . .] Mescolotto, exited his vehicle. Schlegel exited his car and
ordered [Mescolotto] to get back in his vehicle. [Mescolotto]
eventually complied, and Schlegel approached the vehicle.
Schlegel advised [Mescolotto] he was stopped for speeding, and
obtained [Mescolotto’s] license, registration, and insurance
information. Once he completed the citation, Schlegel asked
[Mescolotto] to sign it. [Mescolotto] asked Schlegel twice if he
could reduce the speed. When Schlegel said he could not,
[Mescolotto] handed the citation back and said he would not sign
it. Schlegel noted the refusal on the citation, gave a copy to
[Mescolotto], and ended the traffic stop.
Trial Court Opinion, 1/22/14, at 1-2.
On July 16, 2013, a magisterial district judge found Mescolotto guilty
of driving 75 mph in a 45 mph zone, and ordered Mescolotto to pay costs
and fines. Mescolotto filed a timely notice of summary appeal on August 14,
2013, and a motion to suppress on September 16, 2013. On October 24,
2013, the trial court denied Mescolotto’s suppression motion after a hearing.
The judge immediately proceeded to a summary appeal trial, finding
Mescolotto guilty of driving 65 mph in a 45 mph zone and ordering him to
pay costs and fines. This timely appeal followed.1
On appeal, Mescolotto presents the following issues for our review:
____________________________________________
1
On August 8, 2014, the Commonwealth filed a motion to supplement the
record pursuant to Pa.R.A.P. 1926. We deny the Commonwealth’s motion
because the document it seeks to enter into evidence, “The Chief of Police
Employment Agreement,” is not material to our disposition of this case.
-2-
J-S59020-14
1. Whether the court erred in denying the omnibus pretrial
motion by failing to apply the clear rule of law, as set forth in
75 Pa.C.S. § 6109(b), requiring any agreements between the
Commonwealth of Pennsylvania and the local municipal police
department to be adopted by ordinance of the municipality.
2. Whether the court erred by failing to apply the requirements
of the Pennsylvania Municipal Law, namely 53 Pa.C.S. § 2305
and § 2315 requiring an ordinance to adopt any
intergovernmental agreements.
3. Whether the court erred in failing to consider the relevant
provisions of the Pennsylvania Motor Vehicle Code, namely 75
Pa.C.S. § 6109(a), which requires that an agreement be in
place before speed restrictions may be enforced by local
police and the ancillary requirements of 75 Pa.C.S. § 6109(b)
which require that any such action by local authorities be
taken by ordinance of the governing body.
4. Whether the court erred in failing to comply with the
requirements of the Pennsylvania Superior Court in
Commonwealth v. Bable, 385 A.2d 530 (Pa. Super. 1998)
and Commonwealth v. Shenkin, 487 A.2d 380 (Pa. Super
1985), relating to authority of the police officer to act on the
limited access highway under state jurisdiction.
5. Whether the court erred by failing to consider whether the
police officer had probable cause for the traffic stop and
applying the totality of circumstances to make such a
determination.
6. Whether the court erred in failing to consider the officer’s
testimony as suspicious based on the lack of credibility of the
officer and based upon his actions concerning the traffic stop
and his egregious conduct.
Brief of Appellant, at 4. All of Mescolotto’s issues on appeal relate to the
trial court’s denial of his suppression motion. Our standard of review when
the trial court denies a suppression motion is as follows:
[T]his Court’s review is limited to determining whether the
court’s factual findings are supported by the record and whether
the legal conclusions drawn from those facts are correct.
Because the Commonwealth prevailed in the suppression court,
-3-
J-S59020-14
we consider only the Commonwealth’s evidence and so much of
the appellant’s evidence as is uncontradicted when read in the
context of the record as a whole. Where the record supports the
suppression court’s factual findings, we are bound by those facts
and may reverse only if the legal conclusions drawn from them
are erroneous.
Commonwealth v. West, 937 A.2d 516, 527 (Pa. Super. 2007) (internal
citations omitted).
The trial court’s denial of Mescolotto’s suppression motion was
premised on the validity of the “Full Time Municipal/Regional Police
Department Speed Enforcement Intergovernmental Agreement with the
Pennsylvania State Police” (Agreement). Mescolotto asserts that Officer
Schlegel lacked authority to enforce speed restrictions on SR-222, a divided
highway, because the Agreement under which he purported to act, was a
legal nullity. Mescolotto contends that the Agreement is an
intergovernmental cooperation agreement as defined in Section 2304 of the
General Local Government Code2 and, as such, the Agreement was required
to be implemented by ordinance in order to be enforceable. See 53 Pa.C.S.
____________________________________________
2
Section 2304 provides:
A municipality by act of its governing body may, or upon being
required by initiative and referendum in the area affected shall,
cooperate or agree in the exercise of any function, power or
responsibility with, or delegate or transfer any function, power or
responsibility to, one or more other local governments, the
Federal Government to any other state or its government.
53 Pa.C.S. § 2304.
-4-
J-S59020-14
§ 2305;3 see also 75 Pa.C.S. § 6109(b).4 The Commonwealth, relying on
Stein v. DOT, Bureau of Driver Licensing, 857 A.2d 719 (Pa. Cmwlth.
2004), argues that the Municipal Police Jurisdiction Act (MPJA) 5 controls and,
therefore, the Agreement authorizing Officer Schlegel to act is valid.
We agree with Mescolotto that intergovernmental cooperation
agreements are effected upon each municipality’s adoption of an ordinance.
See 53 Pa.C.S. §§ 2305, 2315. Failure to do so renders an
intergovernmental agreement void. Commonwealth v. Bable, 385 A.2d
530 (Pa. Super. 1978). However, a police officer’s ability to act outside of
his jurisdiction is governed by the MPJA, not the Local Government Code. 6
Stein, supra.
____________________________________________
3
Section 2305 provides:
A local government may enter into intergovernmental
cooperation with or delegate any functions, powers or
responsibilities to another governmental unit or local
government upon the passage of an ordinance by its governing
body. If mandated by initiative and referendum in the area
affected, the local government shall adopt such an ordinance.
53 Pa.C.S. § 2305.
4
Section 6109(b) provides: “Action taken by local authorities under this
section shall be: (1) by ordinance of the local governing body; or (2) by a
commission or public official authorized to act on specified matters.” 75
Pa.C.S. § 6109(b).
5
42 Pa.C.S. §§ 8951-8954.
6
The Statutory Construction Act instructs that if concurrent application of
statutes is not possible, the specific provision shall prevail and be construed
as an exception to the general provision. 1 Pa.C.S. § 1933. The relevant
(Footnote Continued Next Page)
-5-
J-S59020-14
The MPJA authorizes a municipal police officer to act outside his
primary jurisdiction in specific circumstances. The clear purpose of the MPJA
is to encourage cooperation between law enforcement agencies by
expanding their primary jurisdiction through official, cooperative
agreements. Commonwealth v. Sestina, 546 A.2d 109 (Pa. Super. 1998).
Its purpose is to be liberally construed. Id. citing Commonwealth v.
Ebersole, 492 A.2d 436 (Pa. Super. 1985). The MPJA does not, however,
require a municipality to enact an ordinance before an officer from one
municipality may take police action in another municipality. The section of
the MJPA relevant here states:
Where the officer has obtained the prior consent of the chief law
enforcement officer, or a person authorized by him to give
consent, of the organized law enforcement agency which
provides primary police services to a political subdivision which is
beyond that officer’s primary jurisdiction to enter the other
jurisdiction for the purpose of conducting official duties which
arise form official matter within his primary jurisdiction.
42 Pa.C.S. § 8953(a)(4).
Here, UMTPD Chief Edgardo Colon and Major Timothy Mercer, the
Director of the Bureau of Patrol of the State Police, entered into a section
_______________________
(Footnote Continued)
sections of the Local Government Code apply to “all local governments.” 53
Pa.C.S. § 2301. The MPJA applies only to “duly employed municipal police
officer(s).” 42 Pa.C.S. § 8953(a). Further, the MPJA enumerates a discrete
set of circumstances under which a municipal police officer may exercise
extra-territorial authority. Accordingly, the MPJA is controlling here.
-6-
J-S59020-14
8953(a)(4) agreement on January 7, 2013.7 See Agreement 1/7/13. The
Agreement specifically authorizes UMTPD to patrol SR-222: “The Upper
Macungie Township Police Department, [. . .], shall have the authority to
enforce speed restrictions in accordance with Title 75, Chapter 33, Subtitle
F, on the following limited-access or divided highway within its jurisdiction:
SR-222 Bypass.” As such, UMTPD and the PSP properly executed an
agreement authorizing Macungie Township police officers to enforce speed
limits on SR-222 under the MPJA.
Furthermore, to the extent an implementing ordinance was required,
Upper Macungie Township did implement two ordinances authorizing the
UMTPD to enforce maximum speed limits and use approved speed-timing
devices on state highways within the Township. As the Honorable James T.
Anthony astutely explained in his Pa.R.A.P. 1925(a) Opinion,
Section 6109(a)(11) of the Vehicle Code authorizes local
authorities to enforce speed restrictions on a divided
highway only if it is patrolled by the local police force
under the terms of an agreement with the PSP.
Furthermore, § 6109(b) requires that any action taken by
local authorities shall be by ordinance or by a public official
authorized to act on specified matters.
____________________________________________
7
Mescolotto, relying on Commonwealth v. Bable, 385 A.2d 530 (Pa.
Super. 1978), insists that police departments lack the authority to enter into
municipal cooperation agreements. Id. at 531. However, this Court made
that comment in passing and, therefore, as Mescolotto admits, it is dicta.
Moreover, 42 Pa.C.S. § 6109(a)(11) provides for this exact type of
agreement, which became effective on January 7, 2013. Therefore, Officer
Schlegel was authorized to enforce speed restrictions on SR-222.
-7-
J-S59020-14
Here, an agreement under § 6109(a)(11) was entered into
by the Township and the PSP on January 7, 2013 [. . . ]
What is required by § 6109(b) is that the “action taken by
local authorities” – in this case, speed enforcement – be
authorized by ordinance. The Upper Macungie [Township]
Code does in fact authorize the police department to
enforce maximum speed limits and to use approved speed
timing devices. Upper Macungie Township, Pa., Code of
Ordinances § 15-109[8] and § 15-201. As such, the
Township and the PSP properly executed an agreement
authorizing the township police department to enforce
speed limits on SR-222.
Trial Court Opinion, 1/22/14, at 3.
Upper Macungie Township has clearly evidenced its intent that the
UMTPD enforce speeding laws within its geographical limits, without regard
to whether the roadways in questions are under county, state, or township
control. Thus, we reject Mescolotto’s argument that the Agreement was
____________________________________________
8
Section 15-109 provides:
1. The Township Police Department is hereby authorized to use
all mechanical or electronic speed-timing devices for the
determination of speed of a motor vehicle as are approved or will
be approved by the Department of Transportation of the
Commonwealth of Pennsylvania, including but not limited to
E.S.P.
2. This Section authorizes the use of said devices upon all
highways within the Township of Upper Macungie, be they
Township, county or state highways, and does also hereby elect
to exercise all powers granted to “local authorities” under the
Pennsylvania Motor Vehicle Code, 75 P.S. §§ 1101 et seq.
(1977), as hereafter amended, supplemented, modified or
reenacted by the General Assembly of Pennsylvania.
[Ord. 12-86, 6/5/1986; as amended by Ord. 2007-4, 5/3/2007].
-8-
J-S59020-14
without effect in the absence of Upper Macungie Township adopting an
implementing ordinance.
For the aforementioned reasons, the trial court correctly concluded
that Upper Macungie Township and the PSP properly executed an agreement
authoring the UMTPD to enforce speed limits on SR-222. Because the
Agreement is valid, Officer Schlegel had the authority to initiate a traffic stop
when he observed Mescolotto speeding on SR-222. Therefore, it was at the
discretion of the suppression court to determine whether, under the law, any
evidence relating to the traffic should have been suppressed. Because the
record supports the suppression court’s factual findings, we are bound by
those facts and will not reverse the court’s decision to deny Mescolotto’s
suppression motion.
Mescolotto’s final two issues on appeal are waived. Upon thorough
review of the record, it is evident that Mescolotto did not raise the issue of
probable cause in his omnibus pretrial motion, at trial, or in a post-sentence
motion. See Pa.R.A.P. 302. Likewise, Mescolotto did not challenge the
weight of the evidence before the trial court prior to sentencing, at
sentencing, or in a post-sentence motion. See Pa.R.Crim.P. 607(A); see
also Commonwealth v. Holley, 945 A.2d 241, 245-46 (Pa. Super. 2008)
(this Court cannot entertain, in the first instance, a claim that the verdict is
against the weight of the evidence). Accordingly, both claims are waived.
Judgment of sentence affirmed. Commonwealth’s motion to
supplement the record denied.
-9-
J-S59020-14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/2014
- 10 -