Commonwealth v. Forsythe

J-A03008-17
2017 PA Super 171COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
TERENCE DWIGHT FORSYTHE
Appellee No. 524 MDA 2016
Appeal from the Order Entered March 1, 2016
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0001235-2015
BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.
OPINION BY LAZARUS, J.: FILED JUNE 01, 2017
The Commonwealth of Pennsylvania (“Commonwealth”) appeals from
the order, entered in the Court of Common Pleas of Lycoming County,
granting Terence Dwight Forsythe’s motion to suppress.1 After careful
review, we reverse.
The Trial Court summarized the facts as follows:
I. Background
A. Detective Al Diaz’s Testimony
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1
See Pa.R.A.P. 311(d) (Commonwealth may appeal as of right from order
that does not end entire case where Commonwealth certifies in notice of
appeal that order will terminate or substantially handicap prosecution).
Here, the Commonwealth included in its amended notice of appeal a
certification that the order granting Forsythe’s motion to suppress,
“substantially handicaps and terminates the prosecution’s case.”
Commonwealth’s Amended Notice of Appeal, 4/1/16.
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Detective Al Diaz (Diaz) was a Lycoming County detective
for seven years. He was the coordinator of the Lycoming County
Narcotics Enforcement Unit (NEU). The NEU’s function is to
arrest people for drug violations in Lycoming County. There are
full-time and part-time members of the unit. Part-time members
help when the NEU requests. Municipal police officers are part-
time members of the NEU. Each police officer submits an
application to the NEU. Each application is signed by the chief of
police in the officer’s jurisdiction. Municipal police officers are
paid by their municipalities for their work in the NEU. The
municipalities are reimbursed by the District Attorney’s Office,
who receives money from the Pennsylvania Attorney General’s
Office.
The NEU conducts interdiction roving patrols. An
interdiction roving patrol is when law enforcement officers patrol
areas where there is drug activity and attempt to stem the flow
of drugs. “All those assigned [to a patrol] drive around looking
for narcotics activity.” If a police officer wants to stop a vehicle
while on patrol, he or she has the authority to stop the vehicle.
Diaz tells the patrolling officers to do their jobs. The NEU
conducts interdiction patrols because there is “a really terrible
drug problem in the county.”
On June 3, 2015, the NEU conducted an interdiction roving
patrol. In order to conduct the patrol, Diaz requested the aid of
law enforcement officers in other departments. Sergeant Chris
Kriner (Kriner) of the Old Lycoming Township Police Department
was among those requested to aid in the patrol, which was set
up by Detective Michael Simpler of the Lycoming County District
Attorney’s Office. The patrol included individuals from the
Federal Bureau of Investigation, the Pennsylvania State Police,
the Williamsport Bureau of Police, the Old Lycoming Township
Police Department, the Pennsylvania Board of Probation and
Parole, and the Lycoming County Probation Office. The officers
were briefed before participating in the roving patrol. They were
instructed to target certain areas. During briefings, Diaz
sometimes gives the officers specific individuals to target, but he
did not mention the Defendant or Cody Yearick (Yearick) during
the June 3, 2015 briefing. After the June 3 briefing, “everyone
went out to conduct investigations.”
B. Sergeant Chris Kriner’s Testimony
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Sergeant Kriner has been a police officer with the Old
Lycoming Township Police Department for 15 years. He has
been a member of the NEU since 2001, and he has about 15
years of experience in conducting drug investigations. He assists
members of the NEU in conducting drug investigations.
The NEU requested Kriner’s assistance with a roving drug
interdiction patrol that it was planning for on June 3, 2015. He
was assigned to the patrol “through the Old Lycoming Township
Police Department.” He was “made aware” of the date and time
of the patrol and the location of the briefing. The briefing was
held on June 3, 2015 at approximately 3:00 p.m. in the
conference room of the Old Lycoming Township Police
Department, and the briefing lasted 30 to 45 minutes. Kriner
was not given any specific information about the Defendant or
Yearick during the briefing.
Kriner “went out” immediately after the briefing. He was
in full uniform in an unmarked police vehicle with Chief William
Solomon (Solomon) of the Old Lycoming Township Police
Deparment. As part of the interdiction, Kriner is given general
police powers throughout Lycoming County. He was patrolling
the Interstate 180 corridor, and he was looking for indications of
drug use, buying, and dealing. Kriner’s duties took him outside
of his jurisdiction.
Shortly before 8:00 p.m. on June 3, 2015, Kriner was
patrolling the area of the Weis Market on West Third Street in
Williamsport. This area is not in the Old Lycoming Township
Police Department’s jurisdiction. Rather, it is in the jurisdiction
of the Williamsport Bureau of Police. Based on the police reports
and interviews with criminal defendants, Kriner believes the area
is a high-crime area. He has received complaints of drug use
and drug trafficking in the area. He has also made arrests for
drug trafficking in the area.
As Kriner was driving through the Weis Market’s parking
lot, he saw a green Chevy Blazer parked in the lot. Two men
quickly exited the vehicle and went into the store. Kriner
checked for information on the vehicle and learned that it was
registered to an individual with an address in Mifflinburg, Union
County. From his training and experience, Kriner knows that a
lot of drug users go to Williamsport to purchase drugs. While
the men were in the store, Kriner observed that the vehicle’s
windows were down, its keys were in the ignition, and cell
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phones were inside the vehicle. The men exited the store
several minutes after they entered. They were looking around,
and Kriner believed that they were looking for him and Solomon.
One man sat in the Blazer’s driver seat; the other man sat
in the passenger seat. When the vehicle exited the parking lot,
Kriner began to follow it. Kriner thought it was “probable that
[the men] may have been involved in drug activity.” At the
intersection of Market Street and West Third Street in
Williamsport, it was apparent that the Blazer’s license plate light
was out. Kriner does not remember if the police car’s headlights
were on.
The Blazer did not enter Route 15 South towards Union
County. Instead, it proceeded east on Interstate 180. Kriner
followed the vehicle into Loyalsock Township, which is not in Old
Lycoming Township Police Department’s jurisdiction. Kriner
stopped the vehicle because the registration plate light was not
operating. After the vehicle stopped, Kriner saw the passenger
move around and twist his body. Kriner talked with the vehicle’s
passenger, who was the Defendant. Solomon talked with the
driver, who was Yearick. After talking with the Defendant, Kriner
talked with Yearick. Based on the interviews of the Defendant
and Yearick, the Defendant was taken into custody. There were
drugs “on the Defendant” and “drugs on Yearick.” Cell phones
were seized from the vehicle.
Trial Court Opinion, 2/29/16, at 1-4.
Forsythe filed a motion to suppress, claiming that the stop of the
vehicle was illegal because Sergeant Kriner lacked probable cause and that
the stop violated the Municipal Police Jurisdiction Act (MPJA). 2 Following the
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2
42 Pa.C.S.§ 8953.
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hearing, the court granted, in part, Forsythe’s motion to suppress.3 The
Commonwealth appealed and presents the following issues for our review:
1. Whether the trial court abused its discretion in finding a
violation of the Municipal Police Jurisdiction Act?
2. Whether the trial court abused its discretion in suppressing
evidence based on the alleged violation of the Municipal
Police Jurisdiction Act?
3. Whether the trial court abused its discretion in suppressing
the observations of police officers?
Commonwealth’s Brief, at 9.
Our well-settled standard of review of the granting of a motion to
suppress evidence is as follows:
When the Commonwealth appeals an order suppressing
evidence, we may consider on review only the evidence from the
defendant’s witnesses along with the Commonwealth’s evidence
that remains uncontroverted. Our standard of review is
restricted to establishing whether the record supports the
suppression court’s factual findings; however, we maintain de
novo review over the suppression court’s legal conclusions.
Commonwealth v. Guzman, 44 A.3d 688, 691-92 (Pa. Super. 2012)
(citing Commonwealth v. Brown, 996 A.2d 473, 476 (Pa. 2010)).
Where the suppression court’s factual findings are supported by
the record, [the appellate court] is bound by [those] findings and
may reverse only if the court’s legal conclusions are erroneous.
Where . . . the appeal of the determination of the suppression
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3
The trial court ruled that the controlled substances, Forsythe’s statements,
the evidence obtained from the Blazer, and the officers’ observations made
on June 3, 2015 were suppressed, but ruled that the driver’s proposed
testimony could be submitted into evidence. Suppression Order, 3/1/16, at
9.
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court turns on allegations of legal error, the suppression court’s
legal conclusions are not binding on an appellate court, whose
duty it is to determine if the suppression court properly applied
the law to the facts. Thus, the conclusions of law of the courts
below are subject to [ ] plenary review.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal citations
and quotation marks omitted).
At the suppression hearing in the instant case, the only evidence the
Commonwealth presented was the testimony of Detective Diaz and Sergeant
Kriner, which was uncontested and uncontradicted. Since no relevant facts
are in dispute, the question presented is purely one of law. Accordingly, our
standard of review is de novo. Commonwealth v. Beaman, 880 A.2d 578,
581 (Pa. 2005); Guzman, supra.The Commonwealth first asserts that the trial court erred in finding a
violation of the MPJA:
Pursuant to Section 8953(a) of the MPJA:
(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.
(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
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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.
42 Pa.C.S. § 8953(a)(3), (4). The MPJA is not among those statutes which
must be strictly construed and, instead, is subject to liberal construction to
effectuate its objects and to promote justice. Commonwealth v. Peters,
915 A.3d 1213 (Pa. Super. 2007).
A careful reading of the [MPJA] reveals that its purpose is to
provide police officers with authority to make arrests outside of
their primary jurisdictions in limited situations. In providing for
such authority, the statute also insures that police departments
will be kept apprised, to the greatest possible extent, of action
taken in the municipality by police from outside the jurisdiction.
Therefore, it is clear that one of the goals of the legislature in
enacting the statute was to promote a cohesive working
relationship among municipal police departments.
Commonwealth v. Ebersole, 492 A.2d 436, 438-39 (Pa. Super. 1985).
See Commonwealth v. Sestina, 546 A.2d 109 (Pa. Super. 1988) (the
MPJA “not only encourages cooperative relationships among municipalities,
but also between local municipalities and the state police;” the MPJA
addresses administrative, intra-departmental practice for state police).
Instantly, the trial court explicitly stated the following findings of fact:
1. The trial court finds that Sergeant Kriner was working at
the behest of Detective Diaz of Lycoming County Narcotics
Enforcement Unit (NEU).
2. A “Municipal Drug Task Force Agreement” exists between
the Pennsylvania Attorney General and Lycoming County
District Attorney, dated January 15, 2014.
Trial Court Opinion, 3/31/16. Furthermore, the trial court noted that:
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had Sergeant Kriner made a vehicle stop for a vehicle license
plate light not operating, in his own policing jurisdiction, the stop
would have been legal. Conversely, if Old Lycoming Township
had a properly executed municipal drug task force agreement
adopted by ordinance its officer could have legally made the stop
relying on the excellent policing skills outlined in the Court’s
Order of March 1, 2016.
Trial Court Opinion, 6/14/16, at 2. Finally, the trial court correctly points out
that “the question of a police officer’s ability to act outside his jurisdiction is
governed by the MPJA not the Local Government Code,” the latter of which
contains the Intergovernmental Cooperation Act.4 Trial Court Opinion,
3/31/16, at 4.
Based on the foregoing, it appears that the trial court found a violation
of the MPJA solely based on the fact that the Municipal Drug Task Force
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4
Pursuant to the Intergovernmental Cooperation Act (“ICA”):
(a) General rule. – Two or more local governments in this
Commonwealth may jointly cooperate, or any local government
may jointly cooperate with any similar entities located in any
other state, in the exercise or in the performance of their
respective governmental functions, powers or responsibilities.
(b) Joint agreements. – For the purpose of carrying the
provisions of this subchapter into effect, the local governments
or other entities so cooperating shall enter into any joint
agreements as may be deemed appropriate for those purposes.
53 Pa.C.S. § 2303. Under section 2305 of the ICA, a local government may
enter into any intergovernmental cooperation with another local government
upon the passage of an ordinance of its governing body. Id. at § 2305.
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Agreement5 was not officially ratified by ordinance in Lycoming County. We
disagree with the trial court’s reasoning.
Here, a drug task force agreement existed between the Pennsylvania
Attorney General and the Lycoming County District Attorney. The
agreement made explicit that the Pennsylvania Attorney General “requests
the aid and assistance of the municipal police departments to implement the
municipal drug task force activities in compliance with the [MPJA]” and that
the District Attorney of Lycoming County would be in charge of coordinating
that effort. Municipal Drug Task Force Agreement, 1/15/14, at 2-3.
Sergeant Kriner acted in compliance with specific orders from Detective
Simpler of the Lycoming County District Attorney’s Office and Detective Diaz,
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5
This agreement, made this 15th day of January, 2014, by and
among the Commonwealth of Pennsylvania, Office of the
Attorney General (hereinafter referred to as OAG), Bureau of
Narcotics Investigation and Drug Control (hereinafter referred to
as BNIDC), and the Lycoming County Office of the District
Attorney, individually and collectively, (hereinafter
Municipalities) []
Witnesseth that:
Whereas, the Attorney General has established a municipal
drug task force program throughout Pennsylvania to coordinate
narcotics investigation, enforcement and prosecution activities,
and
Whereas, the Attorney General has requested the District
Attorney of Lycoming Country to control and supervise this
municipal drug task force for her [ . . . ]
Commonwealth of Pennsylvania Office of Attorney General, Municipal Drug
Task Force Agreement, 1/15/14, at 1.
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the coordinator of the Lycoming County NEU. On June 3, 2015, as a
member of the NEU and importantly, acting within that duty, Sergeant
Kriner was given general police power within the entirety of Lycoming
County, Detective Diaz’s jurisdiction.
Sergeant Kriner first witnessed the vehicle in question in Williamsport,
which is within Lycoming County. Based on his training and experience,
Sergeant Kriner immediately recognized suspicious activity which led him to
believe that it was “probable that [the men] may have been involved in drug
activity.” N.T. Suppression Hearing, 2/9/16, at 24. Sergeant Kriner then
followed the vehicle into Loyalsock Township, which is also within Lycoming
County. There, he pulled over the vehicle because the license plate light
was not operating. As the trial court made clear, this stop was legal so long
as the officer has police jurisdiction in that township. Because we find that
Sergeant Kriner was acting in compliance with the MPJA as a function of the
Municipal Drug Task Force Agreement, the vehicle stop was legal.
As mentioned previously, “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, 130 (Pa. Super.
2005) (citing Commonwealth v. Lehman, 870 A.2d 818 (2005)). We have
found no case law that requires that an agreement under the MPJA be
ratified by a county ordinance in the way required of an agreement pursuant
to the ICA. Rather, this is exactly the type of police activity contemplated
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under the MPJA – a county law enforcement agent properly requested the
aid of its individual police municipalities in a countywide police effort. Based
upon the required liberal reading of the MPJA and the existence of the
Municipal Drug Task Force Agreement, as well as the specific request for
assistance made by Detective Diaz, we find that Sergeant Kriner’s actions
did not violate the MPJA. Therefore, suppression was unwarranted.
Because we find that Sergeant Kriner’s actions did not violate the
MPJA, and that suppression was unwarranted, we need not reach the
Commonwealth’s remaining issues.
Order reversed. Case remanded for further proceedings consistent
with the dictates of this Opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/1/2017
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