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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A04002-15


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


                                       -2-
J-A04002-15


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


                                      -3-
J-A04002-15


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:


                                           -4-
J-A04002-15


                                           ....

        (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
____________________________________________


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.



                                           -5-
J-A04002-15


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

____________________________________________


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.



                                           -6-
J-A04002-15


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.


                                            -7-
J-A04002-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/20/2015




                          -8-
