Commonwealth v. Reigel

CONCURRING AND DISSENTING OPINION BY

SHOGAN, J.:

Because I believe that the majority in this matter has erroneously affirmed the entire judgment of sentence, I am constrained to set forth my dissent. It is undisputed that Appellant is appealing from the judgment of sentence entered following his summary convictions of various Pennsylvania Motor Vehicle Code violations. On appeal, Appellant argues that the Municipal Police Jurisdiction Act (“MPJA”), 42 Pa.C.S.A. §§ 8951-8954, does not authorize a police officer, acting within his primary jurisdiction, to issue a citation for a summary offense committed in another jurisdiction and witnessed solely by private citizens. Upon review of the facts of this case and the relevant law, I am compelled to agree with Appellant’s argument in this respect. Thus, I would reverse in part and affirm in part.

“Our standard of review from an appeal of a summary conviction heard de novo by the trial court is limited to a.determination of whether an error of law has been committed and whether the findings of fact are supported by competent evidence.” Commonwealth v. Marizzaldi, 814 A.2d 249, 251 (Pa.Super.2002).

Appellant first claims that the trial court erred in overruling his motion to dismiss Citation 63-2 based on lack of jurisdiction of the issuing police officer. Appellant contends that Saint Clair Chief Carey was without jurisdiction to cite Appellant for violating a red traffic signal in Pottsville. Appellant’s Brief at 8,10-13.

The trial court addressed this jurisdictional issue as follows:

Evidence Chief Carey uncovered established that shortly before the collision, [Appellant] had driven through a steady red light at the intersection of Routes 61 and 209 (Mauch Chunk Street) in Pottsville. As a result of this information, Chief Carey contacted both the Pottsville City Police Department and the Schuylkill County District Attorney’s Office. He informed those entities of his crash investigation and that he had information [from private citizen witnesses] of [Appellant] having committed a Vehicle Code violation within the City of Pottsville prior to the Saint Clair Borough collision. The Pottsville City Chief of Police and the Schuylkill County District Attorney told Chief Carey to continue his investigation and to file any appropriate charges relative to any Vehicle Code violations which had occurred within Pottsville. As a result, Chief Carey did-ultimately issuing [Appellant] the citation for the traffic light violation at the Route 61/Route 209 intersection.

[Appellant] did not present contradictory proof from that offered by Chief Carey, relative to the discussions he had had with, and the consent he had received from the Pottsville Police Chief. Consequently, based upon the uncontra-dicted testimony from Chief Carey, it was found that he properly cited [Appellant] for the traffic violation which occurred in Pottsville shortly before the Saint Clair accident, which had been witnessed by some of the same persons who had also seen the collision. See, Commonwealth v. Sestina [376 Pa.Super. 441], 546 A.2d 109 (Pa.Super.1988) (municipal police jurisdiction statute to be liberally construed so to satisfy purpose of law).

Trial Court Opinion, 6/27/12, at 3-5.

The trial court relied upon section 8953(a)(4) of the MPJA in support of its decision not to dismiss Citation 63-2. Section 8953 of the MPJA provides, in pertinent part, as follows:

§ 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 performing those functions within the territorial limits of his primary jurisdiction in the following cases:

(1) Where the officer is acting pursuant to an order issued by a court of record or an order issued by a district magistrate whose magisterial district is located within the judicial district wherein the officer’s primary jurisdiction is situated, or where the officer is otherwise acting pursuant to the requirements of the Pennsylvania Rules of Criminal Procedure, except that the service of an arrest or search warrant shall require the consent of the chief law enforcement officer, or a person authorized by him to give consent, of the organized law enforcement agency which regularly provides primary police services in the municipality wherein the warrant is to be served.

(2) Where the officer is in hot pursuit of any person for any offense which was committed, or which he has probable cause to believe was committed, within his primary jurisdiction and for which offense the officer continues in fresh pursuit of the person after the commission of the offense.

(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.

(4) 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 from official matters within his primary jurisdiction.

(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.

(6) Where the officer views an offense which is a felony, or has probable cause to believe that an offense which is a felony has been committed, and makes a reasonable effort to identify himself as a police officer.

42 Pa.C.S.A. § 8953(a) (emphasis added). Section 8953, thus, addresses the power and authority of police officers to issue citations beyond the territorial limits of their primary jurisdictions. It does not address the power and authority of police officers to issue citations while they are within their primary jurisdictions, as the facts of this case reflect. See also Moyer v. Department of Transportation, Bureau of Driver Licensing, 28 A.3d 943 (Pa.Cmwlth.2011) (holding Section 8953 relates to extra-territorial municipal police officer jurisdiction and does not apply where arrest occurs within officer’s primary jurisdiction).¹ Hence, I believe that section 8953 is inapposite.

Section 8952 is the provision of the MPJA that addresses the authority of municipal police officers to issue citations within their primary jurisdictions. This section provides as follows:

§ 8952. Primary municipal police jurisdiction

Any duly employed municipal police officer shall have the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office anywhere within his primary jurisdiction as to:

(1) Any offense which the officer views or otherwise has probable cause to believe was committed within his jurisdiction.

(2) Any other event that occurs within his primary jurisdiction and which reasonably requires action on the part of the police in order to preserve, protect or defend persons or property or to otherwise maintain the peace and dignity of this Commonwealth.

42 Pa.C.S.A. § 8952 (emphasis added).

After careful review of the record, I am forced to conclude that the facts of this case do not meet the statutory requirements of either section 8952(1) or (2). The record reflects that Citation 63-2 was issued for a traffic violation in Pottsville, a jurisdiction outside of Chief Carey’s Saint Clair jurisdiction. Although he obtained the permission of the Pottsville Chief of Police and the Schuylkill County District Attorney prior to the filing of the charges, Chief Carey did not directly view the offense or have probable cause to believe it was committed within his primary jurisdiction. Chief Carey’s information about the Pottsville violation was obtained from private citizens who observed Appellant driving through the red light. Furthermore, there is no evidence of “any other event that oceur[ed] within his primary jurisdiction and which reasonably require[d] action on the part of [him] in order to preserve, protect or defend persons or property or to otherwise maintain the peace and dignity of this Commonwealth.” Thus, I am constrained to conclude that Chief Carey was not authorized to issue Citation 62-3 under section 8952 of the MPJA.

Accordingly, because the trial court erred in determining that Chief Carey’s citation of Appellant for the red light traffic violation in Pottsville was permissible under section 8953 and because the citation was not authorized pursuant to section 8952, I would reverse the judgment of sentence as it relates to Citation 62-3.

With regard to Appellant’s second issue raising allegations of trial counsel’s ineffective assistance, I agree with the majority’s disposition. As the majority accurately concludes, these claims cannot be reviewed on direct appeal under our current case law.

For these reasons, I would reverse the judgment of sentence as to Citation 63-2 and affirm in all other respects.²

1 . I acknowledge that the decisions of the Commonwealth Court are not binding precedent in this Court, but may provide persuasive authority. Commonwealth v. Kositi, 880 A.2d 648, 653 n. 4 (Pa.Super.2005).

2 . The record reflects that the Pottsville red traffic control signal citation was fully numbered B8734063-2. Original Record at 3.