J-A16002-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MOLLY HLUBIN,
Appellant No. 951 WDA 2015
Appeal from the Judgment of Sentence May 21, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0003205-2014
BEFORE: SHOGAN, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 6, 2016
Appellant, Molly Hlubin, appeals from the judgment of sentence
entered following her conviction of two counts of driving under the influence
of alcohol. We affirm.
The trial court summarized the factual and procedural history of this
case as follows:
The facts presented to this [c]ourt and found to be credible
are as follows: on September 29, 2013, police officers from the
West Hills DUI Task Force conducted a sobriety checkpoint on
Steubenville Pike in Robinson Township, Pennsylvania. The West
Hills DUI Task Force is comprised of municipal police officers
from fifteen (15) jurisdictions in the western portion of Allegheny
County, Pennsylvania, including Robinson Township and Moon
Township. After the conclusion of the Suppression Hearing, the
Commonwealth filed a Motion to Reopen the Record and Admit
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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New Evidence so that they could introduce, as Exhibit 4,
Robinson Township’s Resolution 14-2003 that authorized their
participation in the West Hills DUI Task Force. This [c]ourt
granted that request on May 21, 2015.
At the Suppression Hearing, the Commonwealth presented
testimony of Sergeant Douglas Ogden, who is a Patrol Sergeant
with the Moon Township Police Department. Sergeant Ogden
has been with the Moon Township Police Department since 1996
and has been in law enforcement since 1989. Sergeant Ogden is
the Program Coordinator and Project Manager for the West Hills
DUI Task Force. In addition to administrative tasks such as
applying for grants and managing statistics, Sergeant Ogden
organizes the checkpoints and road patrols and conducts training
for the officers involved in checkpoints and DUI enforcement and
detection. Sergeant Ogden testified that his statistical analysis
showed that most of the DUI arrests and crashes in Robinson
Township occurred at Steubenville Pike. The West Hills DUI Task
Force has policies in place to identify target locations for DUI
checkpoints, which [were] admitted into evidence as
Commonwealth’s Exhibit 1. The West Hills DUI Task Force Policy
and Procedural Guidelines require that the grant coordinator, or
his designee, be present at all DUI checkpoints.
Sergeant Ogden testified that he requested a DUI
checkpoint from September 28, 2013 at 11[:00] p.m. through
September 29, 2013 at 4:00 a.m. to coordinate with the ending
time of a concert at the Star Amphitheater because historically
Robinson Township has difficulty with drunk drivers following
concerts at that venue. On September 23, 2013, Robinson
Township Police authorized this DUI checkpoint. Thereafter,
Sergeant Ogden sent out the required press releases and the
request for manpower. At the time the checkpoint begins,
Sergeant Ogden and the officer in charge assign officers from
each municipality specific tasks with the officers from the home
agency who are qualified to administer DUI Field Sobriety Tests
being assigned to the testing area. Generally, Sergeant Ogden,
as grant coordinator, is in the area of the DUI trailer and testing
area assisting officers there, however, he also can fill in where
needed when manpower is depleted.
Sergeant Ogden was present at the September 28, 2013
DUI checkpoint on Steubenville Pike in Robinson Township. At
12:25 a.m., he was filling in on the road because the line had
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become depleted of manpower. At this time, he came into
contact with [Appellant], who was the driver of a vehicle. After
introducing himself, Sergeant Ogden asked for her driver’s
license, registration, and proof of insurance. [Appellant] initially
handed him her Target credit card. While [Appellant] was
obtaining her documentation, Sergeant Ogden noticed an odor
[of] alcoholic beverages coming from the vehicle and that
[Appellant] had slurred speech. In addition, [Appellant]
admitted that she had a shot and a beer. Sergeant Ogden then
escorted her to the testing area, explained the testing
procedure, and handed her over to Officer Sicilia of the Robinson
Township Police Department. Thereafter, Sergeant Ogden had
no direct contact with [Appellant].
Officer Dominic Sicilia, a police officer with Robinson
Township, testified that he was working the testing area in the
DUI checkpoint on Steubenville Pike in Robinson Township on
September 28-29, 2013. He further testified that he came into
contact with [Appellant] while he was working the checkpoint.
He testified that he explained that she was going to be asked to
perform three field sobriety tests: the HGN test, the walk-and-
turn test, and the one-legged stand test. [Appellant] was given
instructions on how to perform each test prior to administration
of the test, and understood the directions. With regard to the
HGN test, Officer Sicilia was looking for six (6) clues, and
observed all six (6) clues. Further, [Appellant] exhibited two (2)
out of eight (8) clues for the walk-and-turn test. [Appellant]
exhibited one (1) out of four (4) clues for the one-legged stand
test. Based upon his experience with intoxicated persons, his
training as a police officer, the information provided by Sergeant
Ogden, and his interaction with [Appellant], Officer Sicilia formed
an opinion that [Appellant] was incapable of safely operating a
motor vehicle. Thereafter, [Appellant] consented to a blood
draw, and was found to have a blood alcohol content of .152%.
Trial Court Opinion, 1/5/16, at 2-5 (internal citations omitted).
By way of Criminal Complaint, [Appellant] was charged
with two counts of Driving Under the Influence of Alcohol in
violation of 75 Pa.C.S.A. §3802(b) (having a BAC of .10% to less
than .16%) and 75 Pa.C.S.A. §3802(a)(1) (general impairment)
for [the] incident that occurred on September 29, 2013.
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On March 13, 2015, this [c]ourt heard [Appellant’s] Motion
to Suppress, which was denied on May 21, 2015. The matter
proceeded to a non-jury trial on May 21, 2015 wherein the
Commonwealth and [Appellant] stipulated to the admission of
the suppression hearing testimony of Officer Sicilia and Sergeant
Ogden as well as the crime lab results of [Appellant’s] blood test.
Thereafter, [Appellant] was found guilty of both counts of DUI.
[Appellant] waived her right to a pre-sentence report and the
matter proceeded to sentencing. [Appellant] was sentenced to
thirty (30) days of Restrictive Intermediate Punishment, six (6)
months of non-reporting probation, and the mandatory fines and
stipulations.
On June 16, 2015, [Appellant] filed [a] Notice of Appeal.
Via Order of Court dated June 22, 2015, Counsel for [Appellant]
was directed to file a Concise Statement of Matters Complained
of [on] Appeal. [Appellant] filed her Concise Statement on July
1, 2015[.]
Trial Court Opinion, 1/5/16, at 1-2. The trial court filed an opinion pursuant
to Pa.R.A.P. 1925(a).
On appeal, Appellant presents the following issues for our review:
A. Whether or not the West Hills DUI Task Force, comprised
of police officers from fifteen (15) different municipalities, was
lawfully created and possessed the requisite jurisdiction pursuant
to the Intergovernmental Cooperation Act, 53 Pa.C.S.A. § 2303,
et. seq., to conduct a DUI sobriety checkpoint on Steubenville
Pike in Robinson Township, PA, which led to the Appellant’s stop,
detention and arrest?
B. Whether or not Sergeant Ogden, the Moon Township, PA,
police officer that organized and oversaw the West Hills DUI Task
Force DUI sobriety checkpoint located on Steubenville Pike in
Robinson Township, PA, had jurisdiction pursuant to the
Municipal Police Jurisdiction Act, 42 Pa.C.S.A. § 8953, or the
Intergovernmental Cooperation Act, 53 Pa.C.S.A. § 2303, et.
seq., to stop and detain the Appellant for an offense that
occurred in Robinson Township, PA?
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C. Whether or not Officer Sicilia had sufficient probable cause
to arrest the Appellant for the offense of DUI and to request a
chemical test?
Appellant’s Brief at 4.
All of Appellant’s issues relate to the trial court’s denial of her
suppression motion. Appellant’s Brief at 14. Our standard of review when
the trial court denies a suppression motion is as follows:
When considering the denial of a suppression motion, this
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, 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).
In her first issue, Appellant argues that the trial court erred when it
ruled that the West Hills DUI Task Force (“Task Force”) was lawfully created
and had jurisdiction to stop, detain, and arrest Appellant at the sobriety
checkpoint in Robinson Township.1 Appellant’s Brief at 15. Appellant
contends that Pennsylvania law does not allow municipal officers from
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1
We, like the trial court, interpret this issue as solely a challenge to the
legitimacy of the Task Force and not to the operation of the checkpoint itself.
See Trial Court Opinion, 1/5/16, at 5.
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multiple jurisdictions to loosely band together to form a task force and cross
jurisdictional lines for the purpose of conducting a DUI sobriety checkpoint.
Id. Appellant maintains that the Intergovernmental Cooperation Act, 53
Pa.C.S. 2302, et. seq. governs agreements and cooperation between
municipalities. Id. The Act permits municipalities to jointly cooperate;
however, it requires a specific statutory process that must be followed. Id.
Appellant asserts that process was not followed in this case. Id. Appellant
avers that “[t]here was no evidence presented of any signed, or even
written, joint agreement between the participating municipalities that was
adopted by ordinance; therefore, the West Hill DUI Task Force did not legally
exist or have jurisdiction to enforce the laws of the Commonwealth on behalf
of the municipalities.” Id. at 21. Accordingly, Appellant posits that the Task
Force lacked jurisdictional authority to conduct the DUI checkpoint at issue
herein. Id. at 20.2
The Intergovernmental Cooperation Act, (“ICA”), 53 Pa.C.S. §§ 2301-
2317, applies to all local governments. 53 Pa.C.S. § 2301. “Local
governments” are defined as: “A county, city of the second class, second
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2
We note that the Commonwealth fails to present any argument on this
issue other than to state that: “It is the position of the Commonwealth that
exactly what type of entity West Hills DUI Task Force is and how it came into
creation is irrelevant as the Municipal Police Jurisdiction Act (MPJA), 42
Pa.C.S.A. § 8951, et seq. authorizes police officers to act outside of their
primary jurisdiction.” Commonwealth’s Brief at 13. The application of the
MPJA to this matter is discussed subsequently in addressing Appellant’s
second issue.
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class A and third class, borough, incorporated town, township, school district
or any other similar general purpose unit of government created by the
General Assembly after July 12, 1972.” 53 Pa.C.S. § 2302. The additional
provisions of the Act relevant to the pending issue provide the following:
§ 2303. Intergovernmental cooperation authorized
(a) General rule.--Two or more local governments in this
Commonwealth may jointly cooperate, or any local government
may jointly cooperate with any similar entities located in any
other state, in the exercise or in the performance of their
respective governmental functions, powers or responsibilities.
(b) Joint agreements.--For the purpose of carrying the
provisions of this subchapter into effect, the local governments
or other entities so cooperating shall enter into any joint
agreements as may be deemed appropriate for those purposes.
53 Pa.C.S. § 2303.
§ 2304. Intergovernmental cooperation
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 or any other state or its government.
53 Pa.C.S. § 2304.
§ 2305. Ordinance
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.
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53 Pa.C.S. § 2305 (emphasis added).
§ 2315. Effect of joint cooperation agreements
Any joint cooperation agreement shall be deemed in force as to
any local government when the agreement has been adopted
by ordinance by all cooperating local governments. After
adoption by all cooperating local governments, the agreement
shall be binding upon the local government, and its covenants
may be enforced by appropriate remedy by any one or more of
the local governments against any other local government which
is a party to the agreement.
53 Pa.C.S. § 2315 (emphasis added).
Thus, intergovernmental cooperation agreements are effected upon
each municipality’s adoption of an ordinance; failure to do so renders an
intergovernmental agreement void. Stein v. Com., Dept. of Transp.,
Bureau of Licensing, 857 A.2d 719, 724 (Pa. Cmwlth. 2004);3 see also
Summit Tp. Indus. and Economic Development Authority v. County of
Erie, 980 A.2d 191, 209-210 (Pa. Cmwlth. 2009) (county could not enter
into intergovernmental cooperative agreements with other municipalities and
distribute revenue to such municipalities without the county and
municipalities first passing ordinances adopting the agreements).
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3
“Although decisions of the Commonwealth Court are not binding on this
Court, we may rely on them if we are persuaded by their reasoning.”
NASDAQ OMX PHLX, Inc. v. PennMont Secs., 52 A.3d 296, 308 n.7 (Pa.
Super. 2012); see also Commonwealth v. Rodriguez, 81 A.3d 103, 107
n.7 (Pa. Super. 2013) (“Although the decisions of the Commonwealth Court
are not binding upon this Court, they may serve as persuasive authority.”).
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The Commonwealth presented five exhibits. We note that
Commonwealth Exhibits 1, 2, 3 and 5 are not included in the certified
record.4
The law of Pennsylvania is well settled that matters which are
not of record cannot be considered on appeal . . . any document
which is not part of the officially certified record is deemed non-
existent—a deficiency which cannot be remedied merely by
including copies of the missing documents in a brief or in the
reproduced record.
Commonwealth v. Preston, 904 A.2d 1, 6 (Pa. Super. 2006).
Additionally, the appellant has the responsibility “to make sure that the
record forwarded to an appellate court contains those documents necessary
to allow a complete and judicious assessment of the issues raised on
appeal.” Commonwealth v. Walker, 878 A.2d 887, 888 (Pa. Super.
2005).
Nevertheless, Appellant’s failure to include these exhibits in the
certified record does not hamper our review. Thorough descriptions of the
documents identified as the respective exhibits are provided in the
suppression hearing and nonjury stipulated trial transcripts. In addition, the
exhibits are included in the reproduced record and match the detailed
descriptions provided in the transcripts. Having an understanding of these
exhibits, we note that none establishes that the Task Force was lawfully
created or had authority to conduct the sobriety checkpoint at issue.
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4
Commonwealth Exhibit 4 is included in the certified record.
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Additionally, none of the five exhibits relied upon by the Commonwealth
proves that the Task Force was created by a joint cooperation agreement.
Moreover, there was no evidence presented that participating member
municipalities had adopted ordinances for purposes of joining and creating
the Task Force.
Specifically, Commonwealth Exhibit 1 was the Task Force policy and
procedural guidelines for conducting sobriety checkpoints. These policies
and procedures simply outline criteria for establishing a sobriety checkpoint.
Despite listing the fifteen municipalities that allegedly participated in the
Task Force, they do not constitute a joint cooperation agreement nor do they
reflect that the Task Force was lawfully created. Commonwealth Exhibit 2 is
a blank form used by the Task Force to obtain authorization from the host
municipality for purposes of conducting a sobriety checkpoint.
Commonwealth Exhibit 3 is a sobriety checkpoint authorization form
executed by the Chief of Robinson Township police Department authorizing
the sobriety checkpoint held on September 28-29, 2013.
Commonwealth Exhibit 4 is a resolution from Robinson Township. As
noted, this Exhibit is included in the certified record. This document,
Resolution 14-2003, provides as follows:
BE IT RESOLVED, by the authority of the Board of
Commissioners of the Township of Robinson, Allegheny County,
and it is hereby resolved by authority of the same, that the
Township Manager of said Municipality, authority be authorized
and directed to sign the attached agreement on its behalf.
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Further be resolved that the Township of Robinson shall
participate with the West Hills DUI Task Force for the purpose of
promoting safer highways in the Commonwealth by educating
and enforcing driving under the influence of alcohol or drugs
statutes.
I Timothy Little, Township Manager of the Township of
Robinson do hereby certify that the foregoing is a true and
correct copy of the resolution adopted at the regular meeting of
the Board of Commissioners held the 14 of July, 2003.
Commonwealth’s Exhibit 4; attachment to the Commonwealth’s motion to
reopen the record and admit new evidence.
As outlined above, pursuant to 53 Pa.C.S. §§ 2305 and 2315, a joint
cooperation agreement shall be deemed in force when the agreement has
been adopted by ordinance. Commonwealth Exhibit 4 is a resolution, not an
ordinance.5 Accordingly, the exhibit fails to establish that Robinson
Township lawfully entered into the joint cooperation agreement that
allegedly created the Task Force.6 Moreover, the resolution did not serve to
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5
The Commonwealth Court explained the difference between a resolution
and an ordinance in Middletown Tp. v. County of Delaware Uniform
Const. Code Bd. of Appeal, 42 A.3d 1196 (Pa. Cmwlth. 2012). “Passing
an ordinance is accompanied by particular formalities, including notice to
residents to provide them the opportunity to voice their concerns with the
municipality’s proposed actions.” Id. at 1201. “As a general rule, a
resolution does not have the effect of a law or an ordinance. It is usually
viewed merely as ‘a formal expression of the opinion or will of an official
body or a public assembly, adopted by vote.’” Id. at 1202 n.8.
6
In Middletown Tp., the Commonwealth Court addressed an issue similar
to that presented herein. In that case, the Court determined that the
township had not lawfully entered into a joint cooperation agreement under
(Footnote Continued Next Page)
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establish that the Task Force was a lawfully created joint cooperation
agreement pursuant to 53 Pa.C.S. §§ 2305, 2315.
Finally, Commonwealth Exhibit 5 was the lab results that established
Appellant’s blood alcohol content. Thus, this exhibit was not relevant to the
determination of whether the Task Force was lawfully created and its
authority to conduct the sobriety checkpoint at issue.
The record is devoid of any evidence that the Task Force was lawfully
created. Without establishing the lawful creation of the Task Force, the
Commonwealth has failed to establish that it had the authority to carry out
the sobriety checkpoint at issue. Therefore, we cannot agree with the trial
court’s conclusion that the DUI checkpoint was a valid exercise of the joint
governmental cooperation agreement.
Consequently, we consider Appellant’s second issue in the context of
determining whether officers had another lawful basis upon which to stop
and arrest Appellant. In her second claim, Appellant argues that Moon
Township Police Sergeant Ogden did not have jurisdiction to stop and detain
Appellant for a DUI offense in Robinson Township. Appellant’s Brief at 27.
Appellant contends that Sergeant Ogden did not have authority to detain
Appellant outside of his primary jurisdiction, and “none of the MPJA’s
enumerated ways in which an officer may lawfully exercise his authority
_______________________
(Footnote Continued)
the ICA because it had passed a resolution, as opposed to an ordinance, in
an attempt to join the agreement. Id. at 1201-1202.
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outside of his primary jurisdiction exist in the present case.” Id. at 27-28.
Thus, Appellant contends, the trial court erred when it ruled that the DUI
sobriety checkpoint at issue complied with the MPJA. Id. at 31.
The MPJA provides police with the authority to act as police officers
outside their jurisdiction in limited circumstances. Commonwealth v.
Lehman, 870 A.2d 818, 820 (Pa. 2005). “The courts of this Commonwealth
have consistently held that in applying the MPJA in a manner that
effectuates its purpose, we should construe its provisions liberally.”
Commonwealth v. Peters, 915 A.2d 1213, 1218 (Pa. Super. 2007).
This Act is not among those statutes which must be strictly
construed under the rules of statutory construction, but instead
is subject to liberal construction to effectuate its objectives and
to promote justice. Commonwealth v. McHugh, 413
Pa.Super. 572, 605 A.2d 1265 (1992). Specifically, one of the
principle objectives to be obtained by this Act is to promote
public safety while maintaining jurisdictional police lines.
Commonwealth v. Merchant, 528 Pa. 161, 595 A.2d 1135
(1991). However, as our Supreme Court stated in Merchant,
“the General Assembly recognized that constructing
impenetrable jurisdictional walls benefited only the criminals
hidden in their shadows.” Id. at 169, 595 A.2d at 1139.
Id. at 1217-1218 (internal citations omitted).
The pertinent exception of the MPJA relevant to the instant case
states:
§ 8953. Statewide municipal police jurisdiction
(a) General rule.--Any duly employed municipal police officer
who is within this Commonwealth, but beyond the territorial
limits of his primary jurisdiction, shall have the power and
authority to enforce the laws of this Commonwealth or otherwise
perform the functions of that office as if enforcing those laws or
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performing those functions within the territorial limits of his
primary jurisdiction in the following cases:
***
(3) Where the officer has been requested to aid or
assist any local, State or Federal law enforcement
officer or park police officer or otherwise has
probable cause to believe that the other officer is in
need of aid or assistance.
42 Pa.C.S. § 8953(a)(3).
The trial court concluded that Sergeant Ogden had jurisdiction to stop
Appellant at the checkpoint in Robinson Township pursuant to section
8953(a)(3). Trial Court Opinion, 1/5/16, at 6. The trial court reasoned that
Sergeant Ogden was at the sobriety checkpoint pursuant to the request for
assistance from the Chief of the Robinson Township Police Department. Id.
at 7. We agree. The record reflects that Sergeant Ogden had authority to
conduct the stop of Appellant based on Robinson Township Police Chief’s
request for assistance for purposes of conducting the sobriety checkpoint.
Furthermore, we recognize that even if there had been a technical
violation of the MPJA, suppression would not be warranted.
Two conflicting positions have arisen in this Court on the
question as to whether a violation of the MPJA entitles an
aggrieved party to suppression under the exclusionary rule. In
Commonwealth v. Bradley, 724 A.2d 351 (Pa.Super.1999) (en
banc), this Court noted the exclusionary rule applies to any
evidence gathered subsequent to an MPJA violation “even if the
officer acts in good faith or the police officer’s actions would
have been lawful if performed within the proper jurisdictional
limits.” Id. at 354, citing Commonwealth v. Brandt, 456
Pa.Super. 717, 691 A.2d 934, 939 (1997), appeal denied 549
Pa. 695, 700 A.2d 437 (1997).
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In Commonwealth v. Chernosky, 874 A.2d 123
(Pa.Super.2005) (en banc), appeal denied 588 Pa. 747, 902
A.2d 1238 (2006), this Court implicitly rejected the absolutist
approach espoused in Bradley in favor of the case-by-case
approach approved of by our Supreme Court in Commonwealth
v. O’Shea, 523 Pa. 384, 567 A.2d 1023 (1990). The factors to
be considered in applying this case-by-case approach consist of
“all the circumstances of the case including the intrusiveness of
the police conduct, the extent of deviation from the letter and
spirit of the [MPJA], and the prejudice to the accused.”
Chernosky, supra at 130, quoting O’Shea, supra at 1030.
The Chernosky Court further noted that the spirit, or purpose
of, the MPJA “is to proscribe investigatory, extraterritorial forays
used to acquire additional evidence where probable cause does
not yet exist.” Id. at 130, citing Commonwealth v. Laird, 797
A.2d 995, 999 (Pa.Super.2002).
Chernosky unquestionably sets forth the proper standard
this Court is to employ in determining whether the exclusionary
rule should act to suppress evidence obtained pursuant to an
MPJA violation. Chernosky relies on an approach approved by
our Supreme Court, is more recent than the decision rendered in
Bradley, and sets forth a standard which allows this
Commonwealth’s courts to tailor a remedy in situations where
police intentionally have overstepped their boundaries while still
affording our courts the flexibility to deny suppression when
police have acted to uphold the rule of law in good faith but are
in technical violation of the MPJA. See also Commonwealth v.
Peters, 915 A.2d 1213, 1222 n. 2. (Pa.Super.2007), appeal
granted [938 A.2d 988].
Commonwealth v. Henry, 943 A.2d 967, 972-973 (Pa. Super. 2008).
Here, Sergeant Ogden acted in good faith at the sobriety checkpoint
he believed to be lawfully conducted.7 Thus, even if Sergeant Ogden were in
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7
We do not conclude by implication that the sobriety checkpoint was
unlawfully conducted. Rather, as explained in our discussion of Appellant’s
first issue, we concluded that the Commonwealth failed to establish that the
(Footnote Continued Next Page)
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technical violation of the MPJA, when viewed in light of all the circumstances,
such technical violation would not result in suppression. See Henry, 943
A.2d at 972 (where police officer was in technical violation of the MPJA, but
the violation was unintentional, this Court determined that when viewed in
light of all the circumstances the violation did not warrant the application of
the exclusionary rule and suppression). Accordingly, we conclude that the
trial court did not err in refusing to suppress the evidence resulting from the
stop, detention, and arrest of Appellant.
In her third issue, Appellant argues that Officer Sicilia did not have
probable cause to arrest Appellant or to request a chemical test from
Appellant. Appellant’s Brief at 32. Appellant asserts that Officer Sicilia’s
observations of Appellant and testimony regarding the same were not
sufficient to establish probable cause that Appellant had been driving under
the influence. Id. at 24-40.
The Pennsylvania Supreme Court has explained the following with
regard to sobriety checkpoints:
Although the stopping of a motor vehicle at a sobriety checkpoint
constitutes a seizure for constitutional purposes, such checkpoint
stops are not per se unreasonable, and hence are not per se
_______________________
(Footnote Continued)
Task Force was properly created pursuant to the Intergovernmental
Cooperation Act and that the sobriety checkpoint was lawfully conducted on
that basis. Here, our reference to the lawfulness of the sobriety checkpoint
is solely for purposes of addressing Sergeant Ogden’s intent in stopping
Appellant during the checkpoint and his belief that the sobriety checkpoint
was lawfully conducted.
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unconstitutional under either the Fourth Amendment to the
United States Constitution or Article I, Section 8 of the
Pennsylvania Constitution. . . . [T]he United States Supreme
Court concluded that sobriety checkpoints do not offend the
Fourth Amendment because they are a reasonable means of
advancing a vital public interest, involving only a modest
intrusion on the privacy and liberty of motorists. Similarly, we
have held that systematic, non-discriminatory, non-arbitrary
checkpoints do not offend the Pennsylvania Constitution.
Commonwealth v. Worthy, 957 A.2d 720, 724 (Pa. 2008) (internal
citations and footnote omitted).
Moreover, this Court has explained the following with regard to a
warrantless arrest:
Probable cause to arrest exists when the facts and
circumstances within the police officer’s knowledge and of which
the officer has reasonably trustworthy information are sufficient
in themselves to warrant a person of reasonable caution in the
belief that an offense has been committed by the person to be
arrested. Probable cause justifying a warrantless arrest is
determined by the ‘totality of the circumstances.’ [P]robable
cause does not involve certainties, but rather the factual and
practical considerations of everyday life on which reasonable and
prudent men act. It is only the probability and not a prima facie
showing of criminal activity that is a standard of probable cause.
Commonwealth v. Dommel, 885 A.2d 998, 1002 (Pa. Super. 2005)
(internal citations and quotations omitted).
The trial court provided the following explanation in addressing this
issue:
Officer Sicilia credibly testified that [Appellant] smelled of
alcohol, exhibited bloodshot and glassy eyes, and did not
successfully complete the field sobriety tests. In addition to his
observations, Sergeant Ogden had advised [Officer Sicilia] that
[Appellant] admitted to consuming a “shot and a beer” and had
provided her Target credit card instead of her driver’s license.
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Based upon his experience and observations, Officer Sicilia
concluded that [Appellant] was incapable of safely operating her
vehicle. As such, this [c]ourt found that Officer Sicilia had
probable cause to arrest [Appellant] for DUI.
Trial Court Opinion, 1/5/16, at 7-8.
Although Appellant challenges the substance and reliability of Officer
Sicilia’s testimony in establishing probable cause, the trial court found his
testimony to be credible. See Commonwealth v. Gallagher, 896 A.2d
583, 585 (Pa. Super. 2006) (“It is within the suppression court’s sole
province as factfinder to pass on the credibility of witnesses and the weight
to be given their testimony.”). Additionally, Sergeant Ogden’s testimony
regarding Appellant’s behavior supported Officer Sicilia’s determination.
Under the totality of the circumstances, therefore, an officer exercising
reasonable caution would have had probable cause to believe that Appellant
had been driving under the influence of drugs or alcohol. Accordingly, we
conclude that the trial court did not err in determining that Officer Sicilia had
probable cause to arrest Appellant for DUI. See Commonwealth v. Salter,
121 A.3d 987, 995 (Pa. Super. 2015) (probable cause for DUI arrest existed
with an odor of alcohol, glassy eyes, appellee’s admission that she had two
glasses of wine, and poor performance on field sobriety tests.).8
____________________________________________
8
Despite raising it in her brief, Appellant failed to raise any challenge to
Officer Sicilia’s request for a chemical test in her Pa.R.A.P. 1925(b)
statement. Therefore, this issue is waived. See Commonwealth v.
Dowling, 883 A.2d 570, 578 (Pa. 2005) (citing Commonwealth v. Lord,
(Footnote Continued Next Page)
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J-A16002-16
Judgment of sentence affirmed.
Judge Olson joins the Memorandum.
Judge Strassburger files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2016
_______________________
(Footnote Continued)
719 A.2d 306, 309 (Pa. 1998)) (The failure to raise an issue in an ordered
Rule 1925(b) statement results in waiver of that issue on appeal.).
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