Com. v. Scaletta, J.

J-A04002-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSEPH C. SCALETTA, JR.,
Appellant No. 134 WDA 2014
Appeal from the Judgment of Sentence November 4, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0009330-2012
BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 20, 2015
Joseph C. Scaletta, Jr., appeals from the judgment of sentence
imposed by the trial court after he was found guilty of driving under the
influence of alcohol (“DUI”) highest rate and DUI general impairment as well
as two summary traffic violations. We affirm.
Appellant’s sole issue relates to the trial court’s failure to find the stop
of his vehicle and his arrest illegal. Accordingly, we set forth the facts
outlined at Appellant’s suppression hearing. Shaler Township Police Officer
Joshua Watkins was on routine patrol on May 20, 2012. At approximately
10:40 p.m., he received a call regarding an alleged intoxicated driver
traveling south on State Route 28. To enter Route 28 from Shaler, a driver
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*
Retired Senior Judge assigned to the Superior Court.
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must travel to either Etna or Millvale. Thus, Officer Watkins proceeded to
the closest on-ramp, which happened to be the Etna ramp. Officer Watkins
did not see any erratic driving and exited Route 28 at Millvale. He then
turned around and re-entered Route 28 traveling northbound via the Millvale
on-ramp.
At this point, Officer Watkins observed a silver Porsche Cayenne. That
vehicle drifted between two lanes of traffic, straddled the middle white
dotted line for an extended period, and twice changed lanes without using a
turn signal. According to the officer, each of these violations occurred in
Shaler on Route 28. Officer Watkins followed the Porsche as it exited into
Etna since there is a small shoulder on Route 28 in this area, and he
effectuated a traffic stop. Officer Watkins related that the Shaler portion of
Route 28 is part of his regular patrol and that Pennsylvania State Police do
not patrol that area of the road.
Appellant was the driver of the Porsche. Officer Watkins averred that
Appellant had slurred speech and the odor of alcohol on his breath.
Appellant denied drinking alcohol and refused to look at the officer while he
asked him questions. Officer Watkins requested Appellant perform a
portable breath test, which showed the presence of alcohol on Appellant’s
breath. As a result, Officer Watkins asked Appellant to exit the vehicle to
perform field sobriety tests. Appellant was unsteady on his feet as he
exited, requiring the vehicle to keep his balance. Appellant failed the field
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sobriety tests and was placed under arrest. Subsequent breath testing
revealed that Appellant had a blood alcohol content of .152 and .150
percent.
Thereafter, Appellant filed a motion to suppress, contending that
Officer Watkins did not have jurisdiction to perform the traffic stop in
question under the Municipal Police Jurisdiction Act (“MPJA”). The court
conducted a suppression hearing on July 12, 2013, and permitted Appellant
the opportunity to brief his arguments. On August 7, 2013, the court denied
the motion. Appellant agreed to a stipulated non-jury trial on October 11,
2013. The court did not issue a decision immediately to permit Appellant
and the Commonwealth to negotiate a possible Accelerated Rehabilitative
Disposition plea. After negotiations proved unsuccessful, the court entered
its verdict on November 4, 2013, finding Appellant guilty of the
aforementioned DUI charges and two summary offenses.
Appellant waived a presentence report and agreed to be sentenced
that same day. The court sentenced Appellant to a four-day DUI alternative
program and six months of probation. Appellant timely filed a post-sentence
motion and request for a hearing. The court denied the motion on
December 24, 2013. This timely appeal ensued. The court directed
Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. Appellant did not timely comply, but filed a
1925(b) statement nunc pro tunc on April 1, 2014. The court authored its
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opinion, and the matter is now ripe for our review. Appellant raises one
contention on appeal.
I. Whether the trial court erred in denying Mr. Scaletta’s motion
to suppress where the stop of Mr. Scaletta’s motor vehicle
occurred outside of the arresting officer’s primary jurisdiction,
was without lawful authority, and was so intrusive as to
warrant suppressing all evidence from such stop?
Appellant’s brief at 5.
Preliminarily, we note that, although Appellant failed to timely file his
concise statement, we do not find his issue waived. See Pa.R.A.P. 1925(c);
Commonwealth v. Burton, 973 A.2d 428 (Pa.Super. 2009) (en banc). In
evaluating a suppression ruling, we consider the evidence of the
Commonwealth, as the prevailing party below, and any evidence of the
defendant that is uncontradicted when examined in the context of the
suppression record. Commonwealth v. Sanders, 42 A.3d 325, 330
(Pa.Super. 2012). This Court is bound by the factual findings of the
suppression court where the record supports those findings and may only
reverse when the legal conclusions drawn from those facts are in error. Id.
Appellant’s challenge implicates the MPJA. That statute provides in
relevant part:
(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:
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....
(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.
42 Pa.C.S. § 8953.
Appellant’s initial argument is that because Officer Watkins could not
enter Route 28 from Shaler, the section of Route 28 in Shaler Township was
not his primary jurisdiction. This argument is frivolous.1 The area of road in
question was within Shaler Township. That police had to enter the roadway
through another jurisdiction is irrelevant for purposes of primary jurisdiction.
Appellant’s first position is a non-sequitur. Shaler Township police, under
the plain, ordinary, and obvious meaning of jurisdiction, have primary
jurisdiction over Shaler Township territory. Indeed, the definition of
“primary jurisdiction” contained in the MPJA is “[t]he geographical area
within the territorial limits of a municipality or any lawful combination of
municipalities which employs a municipal police officer[.]” 42 Pa.C.S. §
8951.
Appellant next submits that a 2012 agreement between Pennsylvania
State Police and Shaler Township authorizing Shaler Township police to
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1
The Commonwealth contends that Appellant waived this aspect of his
argument because he did not maintain this precise position below. We
disagree. Appellant’s argument below fairly encompassed the position he
now makes on appeal.
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enforce the speed limit on Route 28 demonstrates that Shaler police do not
have primary jurisdiction over the portion of Route 28 located in Shaler.
That agreement was entered one month after the stop in this matter.
According to Appellant, “the only official business Ofc. Watkins could have on
SR28 was enforcing speed restrictions.” Since Appellant was not speeding,
Appellant asserts that the stop in Etna was unlawful.
The Commonwealth begins by noting that the 2012 agreement in
question relied upon by Appellant was not before the suppression court.2
Appellant himself acknowledges as much in his brief, asserting that he did
not obtain the information until after the suppression hearing. According to
the Commonwealth, Appellant’s position premised on the 2012 agreement is
waived. While the 2012 agreement was not discussed, an earlier 1990
agreement, which is substantially the same, was utilized by Appellant.
Appellant’s arguments based on the 1990 agreement and the 2012
agreement are essentially identical. Thus, we decline to find his argument
waived as to the 1990 agreement. Nonetheless, we find that Appellant
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2
Appellant attempted to introduce the document into evidence on the day
the court entered its verdict. The Commonwealth objected, and the
agreement was not introduced. However, the document is contained in the
certified record on appeal. We add that we are aware that in In re L.J., 79
A.3d 1073 (Pa. 2013), the Pennsylvania Supreme Court ruled that it is
improper to consider evidence outside the scope of the suppression record.
However, that decision occurred on October 30, 2013, after the suppression
hearing in this matter, which transpired on July 12, 2013. The In re L.J.
Court made its pronouncement prospective only.
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misinterprets the relevance of the State Police agreement with Shaler
Township.
First, the agreement in question does not control Shaler’s primary
jurisdiction. Second, Pennsylvania State Police are charged with enforcing
speed restrictions on limited access and divided highways. Route 28 is such
a roadway. However, 75 Pa.C.S. § 6109(a)(11) provides that Pennsylvania
State Police may agree to relinquish such enforcement to municipal police
for areas in the applicable municipality. Section 6109 provides that it “shall
not be deemed to prevent the department on State-designated highways
and local authorities on streets or highways within their physical boundaries
from the reasonable exercise of their police powers.”
Thus, the agreement at issue does not indicate that Shaler Township
police do not have primary jurisdiction over the area of Route 28 for non-
speeding violations. Rather, it authorizes Shaler police to conduct traffic
stops for speeding in an area that the legislature had authorized
Pennsylvania State Police to patrol for speeding. The testimony herein
indicated that Appellant committed his traffic infractions within Shaler
Township. Officer Watkins was in his primary jurisdiction at the time and
had probable cause to stop Appellant. Officer Watkins was in fresh pursuit
when he pulled over Appellant just outside of Shaler. Thus, the suppression
court did not err.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/20/2015
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