Com. v. Kerstetter, R. ( 2014 )

J-S54015-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RANDY KERSTETTER
Appellant No. 381 MDA 2014
Appeal from the Judgment of Sentence February 26, 2014
In the Court of Common Pleas of Perry County
Criminal Division at No(s): CP-50-CR-0000390-2012
BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.
MEMORANDUM BY LAZARUS, J. FILED SEPTEMBER 25, 2014
Randy Kerstetter appeals from his judgment of sentence, entered in
the Court of Common Pleas of Perry County, following his convictions for the
summary offenses of roadways laned for traffic, 75 Pa.C.S. § 3714(a), and
careless driving 75 Pa.C.S. § 3714(a), as well as two counts of driving under
the influence (DUI), 75 Pa.C.S. §§ 3802(a) (general impairment), 3802(c)
1
and for 45 days to one year. After
careful review, we affirm.
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1
and enforce accountability and compliance while participating in a program.
See http://www.scramsystems.com/index/programs/drunk-driving. The
for use
with high-risk DUI alcohol offenders. It combines 24/7 alcohol testing with
optional house arrest monitoring in a single device.
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At a suppression hearing held on July 16, 2013, Newport Borough
Corporal Officer Barry Wayne Keller, Jr., testified that at approximately 5:15
p.m. on July 28, 2012, he was on-duty in a marked police car when he
received information regarding a 9-1-1 call about a suspected DUI in
progress involving the driver of a Dodge Ram pickup truck.2 Officer Keller
observed the truck enter his borough and he proceeded to follow it. He met
up with the vehicle at a feed mill parking lot located near the Newport
Borough/Oliver Township line, where state highways 34 and 849 merge.
Officer Keller testified that while his jurisdiction begins at the bridge of a
creek, approximately 80-100 yards from the feed mill lot, the lot was a good
location for officers to monitor traffic coming in and out of his borough.
As Officer Keller followed the truck, driven by Kerstetter, he observed
the vehicle tap the middle line while in his jurisdiction. When the vehicle
reached the bridge, which is the borough line, Officer Keller notified state
police that he was unable to make a traffic stop at that time and advised
come into the area. Officer Keller followed the truck as it turned onto the
into the oncoming lane of traffic. Within a mile of that observation, Officer
Keller observed the truck cross over the double yellow line at least six times,
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2
Officer Keller was the sole witness at the suppression hearing.
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officer testified that Kerstetter would abruptly turn his truck to return to his
original lane of travel after each incident of swerving. At that time of day,
Officer Keller testified that there was a steady amount of traffic on the
roadway, and, that based on his training and twelve years of experience on
the police force, it appeared that Kerstetter was under the influence. Officer
Keller immediately notified county communications to let the Pennsylvania
State Police know that he was going to initiate a traffic stop in the interest of
public safety. At that point, Officer Keller activated his police cruiser lights
and siren, after which Kerstetter pulled his truck onto the berm of the road.
Officer Keller identified himself to Kerstetter,3 told him that a state trooper
was en route to speak with him, returned to his cruiser and waited for the
trooper to arrive. When the state trooper arrived on the scene, Officer Keller
informed him of his observations and his continual contact with county
communications. Officer Keller remained with the trooper until Kerstetter
was secured.
On appeal, Kerstetter presents the following issues for our
consideration:
(1) Did the trial court err in denying the suppression motion[,]
allowing evidence in regarding a vehicle stop conducted by
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3
Officer Keller also testified that he detected a strong odor of alcohol
emanating from the interior of the truck. N.T. Suppression Hearing,
7/16/13, at 10.
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an officer outside his jurisdiction, while this officer testified
that he did no[t] observe any probable cause infractions
inside his jurisdiction to warrant a stop.
(2) Was the evidence introduced at trial sufficient to prove
beyond a reasonable doubt that appellant was guilty of
driving under the influence.
In reviewing the denial of a motion to suppress, an appellate court's
responsibility is to determine whether the record supports a suppression
court's factual findings and the legitimacy of the inferences and legal
conclusions drawn from those findings. Commonwealth v. Laird, 797
A.2d 995, 999 (Pa. Super. 2002). If the suppression court held for the
prosecution, the appellate court considers only the evidence of the
prosecution's witnesses and so much of the evidence for the defense as,
fairly read in the context of the record as a whole, remains uncontradicted.
Id.Kerstetter first contends that Officer Keller did not have the authority
to stop his vehicle where he observed no criminal conduct within his
jurisdiction and where the stop took place outside of his jurisdiction.
The Municipal Police Jurisdiction Act (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)
(citation omitted). One of the principal purposes of the MPJA is to promote
public safety, while maintaining police accountability to local authority.
Commonwealth v. Merchant, 595 A. 2d 1135, 1138 (Pa. 1991). The
pertinent exception of the MPJA that is relevant to the instant case states:
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(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:
* * *
(5) Where the officer 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, misdemeanor, 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). Our Courts have explained that the MPJA must be
construed liberally to achieve one of its purposes, which is to provide police
with the authority to act outside their jurisdictions under the circumstances
enumerated in that Act. Commonwealth v. Chernosky, 874 A.2d 123 (Pa.
Super. 2005) (en banc), citing Lehman, supra.
uncontradicted testimony supports the fact that by crossing the center
yellow lines numerous times, and at least crossing over into oncoming traffic
on one instance, Kerstetter was an immediate clear and present danger to
drivers on the roadway. N.T. Suppression Hearing, 7/16/13, at 7. Although
Officer Keller admits that he did not observe Kerstetter commit a criminal
vehicle for a short time over borough lines, where he was on official business
when he was notified of a 9-1-1 call regarding the truck and there were no
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other officers on the scene at the time. Merchant, supra (officers outside
primary jurisdiction on official business when traveling usual route as part of
routine responsibilities); Commonwealth v. Morris, 829 A.2d 690, 697
(Pa. Super. 2003) (incumbent upon officer to follow suspected vehicle
outside of primary jurisdiction while on official business).
vehicle swerving between lanes of travel and, ultimately, into oncoming
traffic, he had probable cause to believe that Kerstetter was committing a
and numerous years on the police force, it was reasonable for him to believe
that Kerstetter was an immediate clear and present danger to persons on
the road. Thus, the stop was proper. See Lehman, supra (on-duty officer
had authority under MPJA to detain defendant outside of jurisdiction, until
other local officers arrived, in response to citizen report; detention
developed into probable cause to believe offense had been committed and
out-of-jurisdiction activities were limited to maintaining status quo and
detention of defendant); see also Stein v. DOT, Bureau of Driver
Licensing, 857 A.2d 719 (Pa. Commw. 2004) (DUI is misdemeanor that
presents clear and present danger to persons or property under section
8953(a)(5)).
In his second issue, Kerstetter claims that if the evidence from the
stop is suppressed, due to the stop
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evidence to convict him of DUI. Having determined that Officer Keller was
justified in stopping Kerstetter under the MPJA, the sufficiency issue is moot.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/25/2014
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