J-S39010-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICHARD CHARLES STAIR, JR.,
Appellant No. 1217 WDA 2016
Appeal from the Judgment of Sentence Entered July 22, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0014326-2015
BEFORE: BENDER, P.J.E., BOWES, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 1, 2017
Appellant, Richard Charles Stair, Jr., appeals from the judgment of
sentence of, inter alia, a five-day term in a restrictive intermediate
punishment program and six months’ probation, imposed after he was
convicted of driving under the influence of alcohol or controlled substance
(“DUI”)—general impairment, 75 Pa.C.S. § 3802(a)(1). We affirm.
The suppression court summarized the procedural history and factual
background of this case as follows:
By way of Criminal Complaint, [Appellant] was charged with two
(2) counts of driving under the influence of alcohol or a
controlled substance … in violation of 75 Pa.C.S.[] § 3802(b)(2)
(DUI—.10% to less than .16%); and 75 Pa.C.S.[] §
3802(a)(1)(DUI—general impairment) … for an incident that
occurred on August 1, 2015. In between [Appellant’s] being
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*
Retired Senior Judge assigned to the Superior Court.
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charged and this matter proceeding to trial, the United States
Supreme Court decided the matter of Birchfield v. North
Dakota, 136 S.Ct. 2160 (2016) that held that the Fourth
Amendment permits warrantless breath tests for driving under
the influence, but warrantless blood tests are prohibited. As
such, on the date of trial, the Commonwealth withdrew count
one, DUI—.10% to less than .16%, and proceeded only on count
two, DUI[—]general impairment.
[Appellant] filed a Motion to Suppress, and a hearing was held
on July 22, 2016. At the conclusion of this hearing, the
suppression [motion] was denied. The matter proceeded to a
stipulated non-jury trial before the undersigned on July 22,
2016[,] after which [Appellant] was found guilty as to the sole
count of DUI[—]general impairment. [Appellant] was sentenced
on that same date to serve 5 days in restrictive intermediate
punishment to be served in Renewal Therapeutic Housing
Program.
On August 17, 2016, [Appellant] filed his Notice of Appeal. Via
[o]rder of [c]ourt [d]ated August 22, 2016, Counsel for
[Appellant] was directed to file a Concise Statement of Matters
Complained of on Appeal. [Appellant] filed his Concise
Statement on September 8, 2016….
***
The following are the facts found to be credible by this [c]ourt
during the suppression hearing and non-jury trial. Sergeant
Douglas Ogden, a Moon Township Police Officer with twenty (20)
years of experience, is the project coordinator and program
director of the West Hills DUI Task Force. The West Hills DUI
Task Force is a group of fifteen (15) communities in the West
Hills that coordinates manpower and resources to operate DUI
checkpoints in their member jurisdictions. The West Hills DUI
Task Force conducted a DUI checkpoint on August 1, 2015[,] on
Steubenville Pike in Robinson Township. Robinson Township is a
member township of the West Hills DUI Task Force. Sergeant
Ogden selected this date and time two to three weeks prior to
the actual checkpoint. The portion of the Steubenville Pike that
lies within Robinson Township is approximately one and a half
miles long. Sergeant Ogden testified that the reasons this
particular location, date, and time were selected are that
Steubenville Pike in Robinson Township receives heavier than
usual traffic following concerts or big events at First Niagara
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Amphitheater; there is an increased likelihood of impaired
drivers coming from [these events]; drivers tend to use this
route to exit the highway and patronize a Sheetz that is located
on this route; previous checkpoints at this same location yielded
a high number of vehicles and impaired drivers coming through
this location. Sergeant Ogden testified to DUI statistics for
Robinson Township from 2008, 2009, 2010, 2011, 2012, 2013,
and 2014. With regard to 2013, out of a total of 107 DUI arrests
in Robinson Township, 60 occurred on Steubenville Pike. In
2014, there were a total of 131 DUI arrests in Robinson
Township, and 70 occurred on Steubenville Pike.
Furthermore, the actual site selected is in a Kohl’s parking lot,
which was selected because it has a long sight distance that
provides adequate vision; traffic approaching the DUI checkpoint
can see it; it provides an easy avenue for officers to quickly
leave the route if they encounter an erratic driver; and it is well
lit. The West Hills DUI Task Force has an agreement with Kohl’s
such that the parking lot lights are left on to provide additional
lighting.
Sergeant Ogden testified that prior to the August 1, 2015
checkpoint, he notified the local media outlets so that they could
publish the DUI checkpoint. This notification is just a broad
notification that provides a general deterrence factor. The actual
notice of the specific checkpoint was the signage posted at
exactly 500 feet prior to the checkpoint that read “Sobriety
Checkpoint Ahead” and a second sign posted exactly at 300 feet
prior to the checkpoint that read “Be Prepared to Stop.” The
lights of the checkpoint were able to be seen prior to the posted
signage.
Officer Patrick Zilles, a police officer with Findlay Township for
over twenty-three (23) years, was working at the August 1,
2015 DUI checkpoint. He has substantial training in detecting
signs of impairment relating to alcohol consumption. On August
1, 2015, he was assigned to be a contact cover office[r], which is
the first person who comes into contact with the drivers who are
proceeding to the DUI checkpoint. When Officer Zilles came into
contact with [Appellant], he noticed the following signs of
impairment: bloodshot glassy eyes and mumbling speech.
Further, upon questioning, [Appellant] admitted to consuming
two beers. Based upon these signs, Officer Zilles had reasonable
suspicion to believe [Appellant] was under the influence of
alcohol and asked [Appellant] to exit his vehicle. Officer Zilles
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then escorted [Appellant] to the Field Sobriety Testing area of
the checkpoint and handed him off to Officer Brad Mermon.
Officer Mermon, a Robinson Township Police Officer for fifteen
(15) years, was working at the August 1, 2015 DUI checkpoint.
Officer Mermon also has extensive experience and training with
identifying intoxicated individuals. He testified that he was
assigned as a testing officer at this DUI checkpoint. A testing
officer is assigned the task of explaining and administering the
field sobriety tests to those individuals transferred to them by
the contact officer. Officer Mermon testified that he encountered
[Appellant] on that night, and administered the field sobriety
tests. He further testified that the test occurred in the Kohl’s
parking lot, which was flat, dry, and contained straight painted
lines. He observed [Appellant’s] bloodshot and glassy eyes, and
[that Appellant] had the odor of alcoholic beverage emanating
from his breath and person. Officer Mermon administered two
field sobriety tests: the walk and turn and the one[-]leg stand.
During the walk and turn, [Appellant] exhibited five out of eight
clues; during the one-leg stand, [Appellant] exhibited one out of
four clues. Officer Mermon then concluded that [Appellant] was
impaired to the extent that he was rendered incapable of safely
operating a motor vehicle and placed [Appellant] under arrest.
Lastly, [Appellant] testified that he was at the Luke Bryan
concert and consumed approximately four beers prior to the
concert.
Suppression Court Opinion, dated 12/13/2016, at 1-5 (internal citations and
footnote omitted).
As mentioned above, after a non-jury trial, Appellant was found guilty
of DUI—general impairment. Appellant subsequently filed a timely notice of
appeal and a concise statement of errors complained of on appeal. Herein,
Appellant raises two issues for our review:
[1.] Did the [suppression] court err in denying Appellant’s
motion to suppress as the specific location chosen for the
sobriety checkpoint was not one which, based on local
experience, was likely to be traveled by intoxicated drivers?
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[2.] Did the [suppression] court err in denying Appellant’s
motion to suppress as the West Hills DUI Task Force lacked
jurisdictional authority to conduct the sobriety checkpoint at
issue?
Appellant’s Brief at 4 (unnecessary capitalization and emphasis omitted).
Initially, we set forth our standard of review:
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).
First, relying on Commonwealth v. Blouse, 611 A.2d 1177 (Pa.
1992), Appellant argues that “[t]he specific location of the sobriety
checkpoint conducted by the Task Force, on August 1, 2015, was not one
which, based on local experience, was likely to be travelled by intoxicated
drivers.” Appellant’s Brief at 12. By way of background, in Blouse, our
Supreme Court adopted the following guidelines for conducting roadblocks
and sobriety checkpoints, which include a requirement that the checkpoint is
located on a route likely to be traveled by intoxicated drivers:
[T]he conduct of the roadblock itself can be such that it requires
only a momentary stop to allow the police to make a brief but
trained observation of a vehicle’s driver, without entailing any
physical search of the vehicle or its occupants. To avoid
unnecessary surprise to motorists, the existence of a roadblock
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can be so conducted as to be ascertainable from a reasonable
distance or otherwise made knowable in advance. The
possibility of arbitrary roadblocks can be significantly curtailed
by the institution of certain safeguards. First the very decision
to hold a drunk-driver roadblock, as well as the decision as to its
time and place, should be matters reserved for prior
administrative approval, thus removing the determination of
those matters from the discretion of police officers in the field.
In this connection it is essential that the route selected
for the roadblock be one which, based on local
experience, is likely to be travelled by intoxicated drivers.
The time of the roadblock should be governed by the same
consideration. Additionally, the question of which vehicles to
stop at the roadblock should not be left to the unfettered
discretion of police officers at the scene, but instead should be in
accordance with objective standards prefixed by administrative
decision.
Blouse, 611 A.2d at 1180 (quoting Commonwealth v. Tarbert, 535 A.2d
1035, 1043 (Pa. 1987) (plurality)) (emphasis added).
According to Appellant, although the Commonwealth “provided
statistics which proposed that the majority of DUI arrests in Robinson
Township occurred on Steubenville Pike[,]” these “statistics do not specify
where on Steubenville Pike individuals were arrested.” Appellant’s Brief at
12 (emphasis in original; citation to record omitted). Appellant claims that
“the length portion of Steubenville Pike in Robinson Township was never
really clearly established by the Commonwealth[,]” and “[w]ithout more
specific statistics about the location of the DUI arrests along Steubenville
Pike, the location of the checkpoint in question was arbitrarily chosen at the
discretion of the police officers involved, and was therefore in violation of the
guidelines set forth by the Pennsylvania Supreme Court.” Id. Put another
way, “Appellant is suggesting that the Commonwealth has a burden to
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establish why a specific location was chosen and such burden is not met by
identifying one road as one traveled often by intoxicated drivers.” Id. at 13.
Appellant cautions that “[i]f the Commonwealth is not required to be more
precise, then it can simply establish checkpoints on any road such as
Interstate 79 by pointing to the number of DUI arrests on said road.” Id.
We disagree.
In Commonwealth v. Menichino, 154 A.3d 797 (Pa. Super. 2017),
this Court recognized that “[t]o establish that the roadblock is likely to be
traveled by intoxicated drivers, the Commonwealth, at the very least, must
adduce evidence sufficient to specify the number of DUI–related arrests
and/or accidents at ... the specific location of the sobriety checkpoint.” Id.
at 802 (citation, quotations, and original brackets omitted). At issue in
Menichino, however, was the level of specificity required to meet that
burden. The defendant convinced the suppression court that the
Commonwealth was required “to specify the number of accidents, arrests,
and violations at the ‘specific checkpoint location.’” Id. (emphasis
added; citation omitted). In other words, “the suppression court and [the
defendant] interpreted the ‘specific checkpoint location’ phrase … to require
evidence of arrests and/or accidents at the exact spot of the
checkpoint[,]” which in that case was Block 2700 of North Hermitage Road.
Id. (emphasis added). In determining that the stop was illegal and all
evidence stemming from it should be suppressed, the suppression court
considered that “at the exact location of the checkpoint there were only two
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DUI arrests reported,” and “also noted it could not take into account the
other 44 arrests made on North Hermitage Road because those arrests did
not occur at the specific location of the checkpoint.” Id.
On appeal, this Court reversed and remanded the case for further
proceedings. We explained:
The suppression court and [the defendant] misconstrue the
specificity required in choosing a checkpoint location. Our cases
have held that the police, in setting up a DUI checkpoint, must
articulate specifics such as the reason for the location and the
number of prior DUIs in the area of the checkpoint. See
Commonwealth v. Stewart, 846 A.2d 738, 741 (Pa. Super.
2004) (holding that the DUI roadblock set up “in the area of
Bookspan on South Market Street in Upper Allen Township” was
conducted substantially in compliance with the Tarbert/Blouse
guidelines); Commonwealth v. Ziegelmeier, … 685 A.2d 559,
562 (1996) (holding “there was testimony ... that the
determination was based on several factors, including volume
[of] traffic, number of DUI arrests in that area (as compared to
the total number in Camp Hill) and the number of DUI related
accidents. Therefore, the roadblock was constitutional under the
requirements of Tarbert and Blouse.”); cf. [Commonwealth
v.] Blee, 695 A.2d [802,] 806 [Pa. Super. 1997] (holding the
officer “never testified as to the number of alcohol-related
accidents and/or arrests on Route 11 in Edwardsville, the specific
location of the sobriety checkpoint.”). Thus, under current
law, the specific location of the checkpoint is the area
where the checkpoint is located, not the exact
block/location of the checkpoint.
Here, there is no dispute that the area of the checkpoint is North
Hermitage Road. For that specific location, the Commonwealth
presented sufficient testimonial and documentary evidence
showing that the location selected was one likely to be traveled
by intoxicated drivers (at least 44 DUI arrests out of the total of
94 for all of State Route 18 located within the City of
Hermitage). Accordingly, the suppression court erred in not
accounting for all DUI arrests made on North Hermitage Road for
purposes of determining whether the checkpoint was
constitutionally acceptable. Because the Commonwealth
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presented sufficient evidence to meet the location criterion under
the Tarbert/Blouse guidelines, we conclude the checkpoint was
conducted in a constitutional manner, and that the suppression
court erred in concluding otherwise.
Menichino, 154 A.3d at 802-03 (emphasis added).
In the case sub judice, the Commonwealth adduced evidence sufficient
to specify the number of DUI–related arrests and/or accidents in the area
where the checkpoint was located, Steubenville Pike. Officer Ogden, who
estimated that the portion of Steubenville Pike running through Robinson
Township was only about a mile and a half long, testified to the following:
[Commonwealth’s attorney:] Sergeant, I’ve handed you what
I’ve marked as Commonwealth’s Exhibit 1. Do you recognize
what I’ve handed to you?
[Officer Ogden:] Yes. This is a letter that I forwarded in
response to another case suppression issue, the same, exactly
the same suppression issue toward a checkpoint in Robinson
Township at that location. … So I forwarded this letter to the
district attorney at the time to show the statistics that I had
formed or recreated to justify the checkpoint that occurred in
2013 in that same location.
[Commonwealth’s attorney:] And what does this data show?
[Officer Ogden:] Well, it reflects the data that I received. … It
shows the number of DUI’s in Robinson Township from 2008 up
to 2012, just this form here that I received from Robinson
Township. So 2008, 65 DUI arrests, 16 DUI crashes, one
fatality, and the roadway where most of these incidents occurred
was Steubenville Pike.
In 2009[,] they had 45 DUI arrests and throughout the entire
township, 11 DUI crashes, no fatalities, and most of the
incidents took place on Steubenville Pike.
In 2010[,] they had 131 DUI arrest, six DUI crashes, no
fatalities, and the road where most of these incidents took place
was Steubenville Pike, in which 63, 63 of the 131 DUI arrests
took place on Steubenville Pike.
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In 2011, 124 DUI arrests, two DUI crashes. 53 of the 124 DUI
crashes took place on Steubenville Pike.
In 2012, 119 DUI arrests, 23 crashes, and most of where these
incidents took place was on Steubenville Pike.
I then in this same letter provided the data … which talked about
the number of arrests we had at checkpoints we set up on
Steubenville Pike. Not all of these checkpoints were at the
location that we used in this particular one, but Steubenville Pike
is just not that long [of] a road. They’re all checkpoints on
Steubenville Pike. 2008, four DUI arrests at checkpoints. 2009,
six DUI arrests at checkpoints on Steubenville Pike again. 2007
rather, seven DUI arrests on Steubenville Pike. 2011, six DUI
arrests on Steubenville Pike, and 2012, the year that we were at
that same location, 12 DUI arrests for traffic running through a
checkpoint. I run a lot of checkpoints. 12 is a very high number
of DUI arrests at a checkpoint.
[Commonwealth’s attorney:] So all of this data is used to
influence your selection of time, date and place for DUI
checkpoints?
[Officer Ogden:] Yeah, in addition to the data which comes to
the later pages because that’s only to 2012. I have 2013 data
as well we did have available to decide on this checkpoint and
that would have been 107 DUI arrests in 2013, 11 crashes, no
fatalities. 60 of 107 DUI’s in Robinson Township had took place
on Steubenville Pike. And in 2014[,] they had 131 DUI arrests
in the township, 33 alcohol-related crashes, and 70, 70 of the
131 DUI arrests occurred on Steubenville Pike.
[Commonwealth’s attorney:] So between the data you
uncovered, input from local officers and your knowledge of the
Luke Bryan concert that night, you decided to establish a
checkpoint?
[Officer Ogden:] Correct.
See N.T. Suppression Hearing, 7/22/2016, at 13-16, 34.1
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1
As mentioned supra, although Appellant contends that “the length portion
of Steubenville Pike in Robinson Township was never really clearly
established by the Commonwealth[,]” see Appellant’s Brief at 12, he also
(Footnote Continued Next Page)
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We deem this evidence sufficient to establish that the location selected
was one likely to be traveled by intoxicated drivers. As explained in
Menichino, “the specific location of the checkpoint is the area where the
checkpoint is located, not the exact block/location of the checkpoint.”
Menichino, 154 A.3d at 803. Thus, the Commonwealth’s data pertaining to
the mile-and-a-half stretch of Steubenville Pike in Robinson Township
satisfied this requirement, as it goes to the area where the checkpoint was
positioned. The precision insisted on by Appellant is simply not required,
and he proffers no authority to convince us otherwise. We therefore
conclude that the suppression court did not err in denying his motion to
suppress on this basis.
Second, Appellant argues that “[t]he [suppression] court erred in
denying [his] motion to suppress as the West Hills DUI Task Force lacked
jurisdictional authority to conduct the sobriety checkpoint pursuant to the
Intergovernmental Cooperation Act [(“ICA”), 53 Pa.C.S. § 2301, et. seq.,]
and the Municipal Police Jurisdiction Act [(“MPJA”), 42 Pa.C.S. §§ 8951-
8954].” Appellant’s Brief at 13 (unnecessary capitalization and emphasis
omitted). Appellant asserts that “[t]he Commonwealth did not … admit any
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(Footnote Continued)
presented no evidence of its length at the suppression hearing. Further, we
reiterate that, when reviewing the denial of a suppression motion, “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.” West, 937 A.2d at 527.
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testimony or exhibits which proved that the cooperating jurisdictions
adopted an ordinance to participate in the Task Force, as is required by the
ICA….” Id. at 15. Further, Appellant claims that “[w]hile the [MPJA] does
grant jurisdictional authority to police officers from outside jurisdictions in
limited circumstances, such a circumstance was not present here[,]”
because this was not a “scenario[] where a criminal act has occurred or is
ongoing at the time … the assistance is requested.” Id. at 9, 16
(emphasis in original; citations omitted). He contends that “[w]hile the
MPJA is to be construed liberally in order to effectuate its purpose, the
subsection that was relied on to authorize the DUI checkpoint in question
has to be stretched to its limit in order to allow for formal and continuous
police cooperation across jurisdictions.” Id. at 15-16 (citation to record
omitted).
At the outset, we determine that Appellant has waived this issue. As
the Commonwealth discerns, Appellant did not advance this argument at the
suppression hearing, where he only raised issues with the notice provided
and the location of the checkpoint. N.T. at 47-64. See Commonwealth v.
Freeman, 128 A.3d 1231, 1242 (Pa. Super. 2015) (deeming issue waived,
in part, because “when the trial court asked [the appellant] to state his basis
for requesting suppression on the record at the commencement of the
suppression hearing, [the appellant] did not raise such an argument”)
(citation omitted); Commonwealth v. Bartee, 868 A.2d 1218, 1221 n.6
(Pa. Super. 2005) (finding waiver, in part, where the appellant presented no
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argument on the issue at the suppression hearing). Additionally, Appellant
does not even aver that the issue was preserved at the suppression hearing.
See Commonwealth v. Williams, 980 A.2d 667, 671 (Pa. Super. 2009)
(“[T]he Commonwealth argues that this issue is waived because it was not
raised at the suppression hearing. Pursuant to the Rules of Appellate
Procedure, [the a]ppellant must specify where in the record this issue was
preserved. In his brief, [the a]ppellant does not indicate where the issue
was preserved in the trial court, nor does he even allege that he raised the
issue at the suppression hearing. Consequently, we are constrained to deem
this issue waived.”) (citations omitted). Accordingly, we agree with the
Commonwealth that this claim is waived.
Notwithstanding, even if this issue were not waived, we would still
conclude that this argument is meritless. A nearly identical argument was
rejected by an en banc panel of this Court in Commonwealth v. Hlubin, --
A.3d --, 2017 WL 2255549 (Pa. Super. filed May 23, 2017) (en banc). In
that case — although this Court determined that the DUI checkpoint did not
comply with the ICA because the municipalities constituting the Task Force
did not “jointly cooperate” by individually adopting the ordinance required by
law — we nevertheless reasoned that the checkpoint was valid under the
relevant section of the MPJA, specifically section 8953(a)(3). See id. at *3,
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*6.2 In response to the appellant’s argument that “the MPJA relates only to
situations where a request for assistance is contemporaneous with the
commission of a crime and that probable cause to believe a crime is being or
has been committed is the fundamental purpose of the MPJA,” id. at *4
(emphasis in original), this Court explained:
[W]e affirm the trial court’s conclusion that the instant
checkpoint was valid under subsection 8953(a)(3) of the MPJA.
There is no statutory language in the MPJA, specifically section
8953(a)(3), that would impose a “contemporaneous”
requirement upon an officer’s request for aid or assistance. In
fact, subsection 8953(a)(2), often termed the “hot pursuit”
exception of the MPJA, specifically applies to those instances
where an officer’s chase into a neighboring jurisdiction is
“immediate, continuous, and uninterrupted.” Moreover, “it is
noteworthy that the predecessor of the MPJA made provision for
police action outside an officer’s primary jurisdiction in only one
circumstance, i.e., hot pursuit.” “The inclusion of additional
instances of authorization indicates that the General Assembly
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2
Section 8953(a) provides the following:
(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 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).
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intended to expand the powers of local police to protect the
public, where such expansion would not adversely affect the
ultimate goal of maintaining police accountability to local
authority.” Thus, in light of the purpose and spirit of the MPJA,
in conjunction with its liberal construction, we decline to read
such a “contemporaneous” element into subsection (a)(3).
Hlubin, 2017 WL 2255549, at *6 (original brackets and citations omitted).
Based on the foregoing, we would not find that the West Hills DUI Task
Force lacked jurisdictional authority in this case. Consequently, we conclude
that the suppression court properly denied Appellant’s motion to suppress,
and, therefore, we affirm his judgment of sentence.
Judgment of sentence affirmed.
Judge Bowes joins this memorandum.
Judge Strassburger files a concurring memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/1/2017
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