J

- A15042

- 22

NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA

Appellant

v.

STEVEN G. EAKIN : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1113 WDA 2021 Appeal from the Order Entered September 8, 2021 In the Court of Common Pleas of Venango County Criminal Division at

No(s): CP

- 61

- CR

- 0000647

- 2017

BEFORE: BOWES, J., KUNSELMAN, J., and SULLIVAN, J. DISSENTING MEMORANDUM BY BOWES, J.: FILED: MAY 2, 2023 I respectfully dissent. Upon review, I believe that the learned Majorit y misapplie d the relevant factors in determining whether a violation of the Municipal Police Jurisdiction Act (“MPJA”) require d suppression

. For the reasons that follow, I conclude that suppression wa s not an appropriate remedy for the technical violation of the MPJA in this case and would therefore

reverse the trial court’s suppression order

. I begin with our standard of review. “ When reviewing an o rder granting
a motion to suppress we are required to determine whether the record supports the suppression court ’ s factual findings and whether the legal conclusions drawn by the suppression court from those findings are accurate. ” Com monwealth v. Henry , 943 A.2d 967, 969 ( Pa.Super. 2008) (cleaned up). In the case sub judice , the facts largely are not in dispute. Rather, th is case hinges on the trial court’s application of the law to those facts. In thatJ

- A15042

- 22

- 2

-

regard, “[o] ur scope of revie w over the suppression court ’ s legal conclusions

. . . is plenary. ” Id

. (citations omitted).
F rom the outset, I note that I take no issue with the Majority’s conclusion that Chief Sharp’s extraterritorial conduct at the time of the stop

was not authorized by statute. As conceded by the Commonwealth, Chief Sharp’s actions were not authorized by the Intergovernmental Cooperation Act (“ICA”) because the 2006 Joint Municipal Agreement , which called for Polk Borough police officers to provide po lice services for Frenchcreek Township , h ad not been adopted by ordinance in French c reek Township, as was required at that time by the ICA for the agreement to take effect

. 1 Additionally, the Commonwealth concedes that Chief Sharp’s actions were not auth orized by the MPJA as they did not fall within one of the six enumerated circumstances.

_________________ __________ ______ ____ _______ 1 T he parties stipulated to the following recitation surrounding the interplay between Polk Borough and Frenchcreek Township: At the time of the traffic stop, which is the subject of this case, it occurred in Frenchcreek Township. . . . Chief Sharp observed [Eakin] operating the vehicle, which was the basis of his stop when he was in . . . Frenchcreek Township. . . . At the time of the stop, there was a Joint Municipal Agreement between Polk Borough and Frenchcreek Township for police services to be provided by officers of Polk in Frenchc reek. Frenchcreek had a resolution to adopt the agreement, but no ordinance. Polk had an ordinance as to the agreement. So, as of the time of the stop in Frenchcreek Township, Frenchcreek had no ordinance adopting the agreement. N.T. Suppression, 8/27/ 21, at 68 (capitalization altered). I note the ICA has since been amended to expressly permit adoption of such an agreement by ordinance or resolution. See 53 Pa.C.S. § 2305.J

- A15042

- 22

- 3

-

Chief Sharp’s technical violation of the MPJA, however, does not automatically compel suppression of the evidence seized as a result of the traffic stop. See Commonw ealth v. Hobel , 275 A.3d 1049, 1058 ( Pa.Super. 2022 )

. In determining the appropriate remedy for an MPJA violation, this Court employs a case

- by

- case approach. Id . “ The factors to be considered

.

. . 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. ” Id . (cleaned up). Th is case - by

- case approach permits “ 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. ” Id

. (cleaned up). Upon review, I find that the case sub judice is a textbook example of Chief Sharp acting “to uphold the rule of law in good faith [while] in technical violation of the MPJA[,]” and therefore the tri al court erred in granting suppression. 2 Id

. My analysis of the first factor is guided by our Supreme Court’s decision
in Commonwealth v. Hlubin , 208 A.3d 1032 (Pa. 2019), wherein the High Court considered the intrusiveness of a sobriety checkpoint. Rather than considering the intrusiveness of a checkpoint for an unimpaired driver, the

_________________ __________ ______ ____ _______ 2 I note with displeasure that the trial court utterly failed to apply this t est, instead concluding summarily that “[t]he remedy is suppression of the evidence” based on Chief Sharp not having the authority to stop Eakin. See Order of Court, 9/8/21, at 2.J

- A15042

- 22

- 4

-

Court c oncluded that it “ must instead measure the level of intrusion of a stop that results in an arrest, since only in this circumstance does the issue of possible suppression of evidence arise. ” Id . at 1048. In Hlubin , the officer initially questioned Hlubin for 30

- 45 seconds and then, based upon that interaction, “ removed Hlubin from her vehicle and took her to a testing area, where she was subjected to field sobriety testing, blood testing and arrest. ” Id . Our High Court determined that such an interaction “resulted in a high level of intrusiveness[.]” Id

. In accordance with Hlubin , I consider the entirety of the encounter from when Chief Sharp stopp ed Eakin to when Eakin was arrested to determine the level of intrusiveness . In that regard, Chief Sharp conducted a traffic stop of Eakin based upon a traffic violation. Upon observing a martini glass in the vehicle and realizing that Chief Sharp had a personal relationship with the driver, he called for another officer to conduct the traffic stop. That officer arrived and ultimately transported Eakin to a hospital for blood testing and
arrest. Based on Hlubin , I am constrained to agree with the Majori ty that th is interaction involved a high level of intrusiveness and thus the first factor favors Eakin. See Majority at 1 1

- 12

. My analysis differs from the Majority as to the second and third factors. Turning to the second factor, I consider “ the extent of deviation from the letter and spirit of the MPJA [.]” Hobel , supra at 1058. This Court has held that

“ the spirit, or purpose of, the MPJA is to proscribe investigatory, extraterritorial forays used to acquire additional evidence where probableJ

- A15042

- 22

- 5

-

cause does not yet exist. ” Id

. (cleaned up). Moreover, the MPJA endeavors

“ to promote public safety while maintaining police accountab ility to local authority; it is not intended to erect impenetrable jurisdictional walls benefiting only criminals hidden in their shadows.” Commonwealth v. Lehman , 870 A.2d 818, 820 ( Pa. 2005) ( cleaned up). Of relevance, the MPJA permits a n officer to a ct outside his jurisdiction where he “ is on official business and views an offense, or has probable cause to believe that an offense has been committed, and makes a reasonable effort to identify himself as a police officer and which offense is a felony,
mi sdemeanor, breach of the peace or other act which presents an immediate clear and present danger to persons or property.” 42 Pa. C.S. § 8953(a)(5). Instantly, a t the time of the stop, Chief Sharp was operating pursuant to a belief that his conduct in Fre nchcreek Township was authorized by the ICA based on the agreement between Polk Borough and Frenchcreek Township

. 3 See N.T. Suppression, 8/27/21, at 51 (stating that he had jurisdiction in Frenchcreek Township). Upon review , I find that he had a good faith belief that he was in Frenchcreek Township on official business. 4 While

_________________ __________ ______ ____ _______ 3 I observe, again, that the 2006 agreement had been adopted by resolution in Frenchcreek Township at the time of the stop, but not by ordinance as was required by the ICA at that time. As noted , our legislature amended the ICA in 2019 expressly to permit adoption by ordinance or resolution

. See 53 Pa.C.S . § 2305.

4 While not pursued by the Commonwealth, Chief Sharp testified at the suppression hearing that he was in Frenchcreek Township while en route to Utica, a municipality where he stated that he also had jurisdiction. See N.T. Suppression, 8/27/21, at 51.J

- A15042

- 22

- 6

-

in Frenchcreek Township on what he reasonably believed to be official business, Chief Sharp observed Eakin driving his vehicle for one

- half of a mile in the wron g direction on a public roadway. Unequivocally , Eakin’s driving presented “an immediate clear and present danger” to other vehicles on the roadway. See 42 Pa.C.S. § 8953(a)(5) ; Hobel , supra at 106 2

- 63 ( concluding that Hobel’s driving presented “an immedi ate clear and present danger” wh en he swerved back and forth across the road into the oncoming traffic lane)

. Under these circumstances, but for Frenchcreek Township’s misguided decision to adopt the agreement by resolution instead of ordinance, Chief Sha rp would have been in Frenchcreek T ownship on official business when he observed Eakin’s dangerous driving , and therefore hi s conduct would have been authorized by the MP JA. The Majority finds this factor weighs in favor of Eakin, essentially positing that the violation of the MPJA “contravenes the MPJA’s policy [.] ” See Majority at 12

. I cannot countenance a conclusion that amounts to a self

fulfilling prophecy . If the second factor favors the accused whenever there is a violation of the MPJA, t hen every application of this test would have the second factor favoring the accused because we only apply it in circumstances where the police have violated the MPJA

. In fact, s uch a rigid application focusing solely on police accountability ignores that the MPJA also endeavors

“ to promote public safety while maintaining police accountability to local authority; it is not intended to erect impenetrable jurisdictional walls benefiting only criminals hidden in their shadows.” Lehman , supra at 820J

- A15042

- 22

- 7

-

( cleaned up) ; see also Hlubin , supra at 1048 (observing that our Supreme Court previously “ held that the goals of the MPJA are the promotion of public safety while maintaining jurisdictional police lines and to e xpand the powers of local police to protect the public, where such expansion would not adversely affect the ultimate goal of maintainin g police accountability to local authority” (cleaned up))

. Given the entire letter and spirit of the MPJA, I find that its objectives were advanced by Chief Sharp’s conduct in this case. Thus, I disagree with the Majority’s conclusion that this factor fa vors Eakin. Finally, I consider the prejudice to Eakin

. See Hobel , supra at 1058

. This factor requires us to consider “ whether the search would not have otherwise occurred or would not have been as intrusive.” See Hlubin , supra at 1048 (cleaned up). The Majority concludes t hat this factor favors Eakin because there was no evidence that the stop otherwise would have occurred. While it is unclear whether the search would have otherwise occurred, it is likely that any other officer pullin g over Eakin would have conducted the search in the same manner as Officer Heller, who was ultimately called to the scene, transported Eakin for blood testing, and arrested him for drunk driving. Therefore, even if another officer had conducted the stop, the resulting search would have been equally intrusive. Thus, I disagree with the Majority’s conclusion that the third factor favors Eakin

. Based on the foregoing, I conclude that in this case “ suppression would not be an appropriate remedy under the MPJA, the legislative intent of which is to advance public safety and not shield criminal behavior. ” Hobel , supraJ

- A15042

- 22

- 8

-

at 1064 (citation omitted). Since I would reverse the suppression order and remand for further proceedings , I respectfully enter this di ssent.