J-S58026-18

                                2018 PA Super 280

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellant             :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 SARAH JEANNE BERGAMASCO                  :   No. 471 WDA 2018

                  Appeal from the Order February 28, 2018
  In the Court of Common Pleas of Westmoreland County Criminal Division
                    at No(s): CP-65-CR-0002598-2017

BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

OPINION BY MURRAY, J.:                              FILED OCTOBER 16, 2018

      The Commonwealth of Pennsylvania (Commonwealth) appeals from the

order granting Sarah Jeanne Bergamasco’s (Appellee) suppression motion.

We affirm.

      After Appellee’s suppression hearing, the trial court made the following

findings of fact:

      1. On October 30, 2016, Officer Kenneth Burke (“Officer Burke”)
      was employed by Ligonier P.D. and working an 11:00 p.m. to 3:00
      a.m. DUI Task Force shift, at the tail end of which Officer Burke
      transported a DUI arrestee to Latrobe Hospital for a blood draw.
      (Omnibus Pretrial Mot. Hr’g Tr. 5, 11, Jan. 18, 2018).

      2. Following the blood draw, at approximately 3:30 a.m., on his
      return to Ligonier Borough from Latrobe Hospital, but while still
      within the boundaries of the City of Latrobe, Officer Burke stopped
      his patrol vehicle at a red traffic light on Ligonier Street and
      observed [Appellee]’s vehicle across the intersection headed in
      the opposite direction on Ligonier Street in the left-hand turning
      lane with its left turn signal on. (Id. at 6, 11).

      3. When the traffic light turned green, Officer Burke proceeded to
      enter the intersection while [Appellee]’s vehicle also traveled into
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     the intersection to commence a left-hand turn that would take her
     across Officer Burke’s traffic lane; Officer Burke had the right-of-
     way. (Id. at 6).

     4. Officer Burke testified that [Appellee] did not yield the right-
     of-way, tried to make the left-hand turn, and “almost hit the
     [driver’s] side” of his marked patrol car. (Id. at 6, 13).

     5. Officer Burke testified that “to get [Appellee’s] vehicle to stop
     from hitting [him],” he activated his patrol car’s bar lights and
     stopped his vehicle in the “middle of the intersection.” (Id. at 6,
     9).

     6. In response to Officer Burke stopping his patrol car and
     activating his lights, [Appellee] stopped her vehicle immediately,
     without swerving, and when both cars were stopped, the front left
     of [Appellee]’s vehicle was “pretty close” to Officer Burke’s patrol
     car, such that when both drivers rolled down their windows they
     were looking directly at one another, i.e., driver-side window to
     driver-side window. (Id. at 13).

     7. Officer Burke testified that while still seated in his patrol car,
     “upon rolling down the window, [he] could tell that [Appellee]
     appeared to be intoxicated by looking at her. Her eyes were real
     glassed over. Her cheeks were kind of red. She kind of had a
     very blank stare.” (Id. at 7).

     8. Officer Burke testified that he then got out of his patrol car to
     “see if she was, in fact, impaired,” at which point he asked
     [Appellee] if she had anything to drink and she responded that
     she had three (3) or four (4) drinks. (Id. at 7-8).

     9. Given the positions of the vehicles upon stopping, as set forth
     in paragraph 6 above, the [c]ourt finds that the front left of
     [Appellee]’s vehicle must have been positioned near the rear of
     Officer Burke’s patrol car, such that Officer Burke was able to look
     directly at [Appellee], ask her “what she was doing,” and observe
     her eyes and face while both parties were still seated in their
     drivers’ seats, and Officer Burke was able to open his door and
     exit his patrol car without using a passenger door. (Id. at 7).

     10. After getting out of his vehicle and asking [Appellee] if she
     had anything to drink, Officer Burke told [Appellee] not to drive
     away or go anywhere. (Id. at 8). Officer Burke then got back into

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        his patrol car, radioed the Latrobe Police Department, and
        remained in his vehicle in the middle of the intersection until local
        Latrobe P.D. arrived on the scene a couple minutes later. (Id. at
        8-9).

        11. When Latrobe P.D. Officer Keslar arrived on the scene, Officer
        Burke told Officer Keslar that [Appellee] admitted to drinking a
        “couple beers or . . . drinks.” (Id. at 9). Officer Burke then
        returned to Ligonier and Officer Keslar completed the arrest,
        administering field sobriety tests and a breathalyzer test on scene.
        (Id. at 15).

Trial Court Opinion, 2/28/18, at 4-5.

        Appellee was charged with driving under the influence of alcohol (DUI)

– general impairment, and DUI – high rate of alcohol.1 On August 10, 2017,

Appellee filed an omnibus pretrial motion to suppress in which she argued that

the traffic stop in Latrobe by a Ligonier police officer was unlawful under

Pennsylvania’s Municipal Police Jurisdiction Act (MPJA), 42 Pa.C.S.A. § 8951,

et seq., and the Fourth Amendment of the United States Constitution and

Article I, § 8 of the Pennsylvania Constitution. On January 18, 2018, the trial

court held a hearing on Appellee’s suppression motion, during which Officer

Burke, who initiated the traffic stop, testified.

        On February 28, 2018, the trial court granted Appellee’s suppression

motion, concluding that Officer Burke’s traffic stop of Appellee violated the

MPJA. On March 28, 2018, the Commonwealth timely appealed to this Court,

certifying that the trial court’s decision to grant Appellee’s suppression motion



____________________________________________


1   75 Pa.C.S.A. § 3802(a)(1), (b).

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substantially handicapped the prosecution. See Pa.R.A.P. 311(d) (permitting

the Commonwealth to appeal from an interlocutory order if it certifies that the

order will terminate or substantially handicap the prosecution). Both the trial

court and the Commonwealth have complied with Rule 1925 of the

Pennsylvania Rules of Appellate procedure.

      On appeal, the Commonwealth presents the following issue for review:

      Did the trial court err in suppressing the traffic stop of [A]ppellee’s
      vehicle and all evidence gained thereafter, finding that the police
      officer violated the Pennsylvania Municipal Police Jurisdiction Act?

Commonwealth Brief at 3.

      Our standard of review in addressing a challenge to the trial court’s

granting of a suppression motion is well settled:

      When the Commonwealth appeals from a suppression order, we
      follow a clearly defined standard of review and consider only the
      evidence from the defendant’s witnesses together with the
      evidence of the prosecution that, when read in the context of the
      entire record, remains uncontradicted. The suppression court’s
      findings of fact bind an appellate court if the record supports those
      findings. The suppression court’s conclusions of law, however, are
      not binding on an appellate court, whose duty is to determine if
      the suppression court properly applied the law to the facts.

Commonwealth v. Korn, 139 A.3d 249, 252-53 (Pa. Super. 2016) (quoting

Commonwealth v. Miller, 56 A.3d 1276, 1278-79 (Pa. Super. 2012)). “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. Brown,

996 A.2d 473, 476 (Pa. 2010).


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      The 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). 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). 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).

      The pertinent provision of the MPJA states:

      (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.A. § 8953(a)(5).

      [S]ection 8953(a)(5) of the MPJA authorizes an extrajurisdictional
      detention where the detaining officer is on-duty, outside his or her
      jurisdiction for a routine or customary reason including responding
      to an exigent circumstance, develops probable cause to believe an
      offense has been committed, and limits out-of-jurisdiction

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      activities to maintaining the status quo, including detaining the
      suspect, until officers from the appropriate jurisdiction arrive.

Commonwealth v. Lehman, 870 A.2d 818, 821 (Pa. 2005). Probable cause

for an arrest exists where the facts and circumstances within the officers’

knowledge are sufficient to warrant a person of reasonable caution in the belief

that an offense has been or is being committed. Commonwealth v. Stultz,

114 A.3d 865, 883 (Pa. Super. 2015) (quotations and citations omitted).

      The Commonwealth first argues that Officer Burke did not violate the

MPJA when he stopped Appellee because she was an immediate clear and

present danger to persons or property.        The trial court determined that

Appellee was not an immediate clear and present danger for the following

reasons:

      12. Aside from asserting that [Appellee] did not yield the right-
      of-way, Officer Burke did not observe [Appellee] driving
      erratically, or in any other manner indicating that she was driving
      under the influence of alcohol or a controlled substance, either
      before or after approaching the intersection. (Id. at 12-13).

      13. At the Omnibus hearing, the Commonwealth introduced no
      evidence regarding the dimensions of the intersection, or how fast
      either car was moving in the intersection during this encounter.
      However, based upon Officer Burke’s testimony, the Court finds
      that neither Officer Burke nor [Appellee] were traveling at a speed
      capable of causing an accident that would result in physical
      injuries to the vehicles’ occupants as both Officer Burke and
      [Appellee]’s vehicles stopped without any extraordinary measures
      being noted, i.e., Officer Burke did not testify that he or [Appellee]
      swerved, slammed on their brakes, skid, or were otherwise not in
      control of their vehicles.

      14. Based upon the totality of Officer Burke’s testimony, and
      particularly given the above finding of the final positions of the
      parties’ vehicles relative to one another, the [c]ourt finds it more

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      likely than not that [Appellee]’s vehicle would have turned left
      behind Officer Burke’s patrol car had he not stopped in the
      intersection.

      15. As [Appellee] stopped her vehicle in the intersection in
      response to Officer Burke unexpectedly stopping his patrol car in
      the middle of the intersection while activating his warning lights,
      the [c]ourt finds that [Appellant] had her vehicle under control,
      and thus, no actual danger to persons or property was present.

      16. Officer Burke’s traffic stop of [Appellee] occurred when Officer
      Burke turned on his warning lights and stopped his car in the
      middle of the intersection.

Trial Court Opinion, 2/28/18, at 5.

      The Commonwealth argues that this case is analogous to Merchant.

The Commonwealth asserts that Merchant stands for the proposition that

failing to yield the right-of-way demonstrates an immediate clear and present

danger to persons and property.

      In Merchant, two Borough of Etna police officers, as part of their usual

routine, were traveling through the Borough of Aspinwall when they observed

Merchant “driving in a very erratic manner crossing the double yellow lines;

in fact, almost hitting a vehicle coming in the opposite direction head on.” Id.

at 1135. Based on their observations, the officers conducted a traffic stop of

Merchant and called the Aspinwall Police. Id. at 1135-36.

      Our Supreme Court concluded that “the actions of the Etna police

officers in stopping and detaining appellee were authorized under section

(a)(5) of the statute.” Id. at 1139. The Court explained,

      Firstly, the officers were on “official business” in that they were on
      duty travelling their usual route as part of their routine

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      responsibilities. Secondly, when appellee drove his car in an
      erratic manner almost hitting an oncoming car, probable cause
      was established that an offense had been committed “which
      offense [was] a felony, misdemeanor, breach of the peace or other
      act which present[ed] an immediate clear and present danger to
      persons or property.” Thirdly, the police, in uniform and a marked
      car, identified themselves as police officers. Finally, the officers
      limited the impact of their activities outside their primary
      jurisdiction by merely detaining appellee while awaiting the arrival
      of the Aspinwall Township police.

Id.

      Instantly, we conclude that the trial court did not err in determining that

Appellee did not present an immediate clear and present danger to persons

and property. Officer Burke’s testimony reflects that when he arrived at the

intersection, he observed Appellee’s vehicle directly across from him, “stopped

in the left-hand turning lane with a turn signal on waiting to go left.” N.T.,

1/18/18, at 6. When the light turned green, both vehicles proceeded into the

intersection. Id. Officer Burke stated that he believed that Appellee was not

going to yield the right-of-way and was about to make a left turn into his

patrol car. Id. The trial court, however, made the factual finding that had

Officer Burke not suddenly stopped his vehicle and activated his lights,

Appellee would have proceeded to safely make a left turn. Trial Court Opinion,

2/28/18, at 4-5. The record supports this conclusion. The record reveals that

when both cars were stopped, the two vehicles were positioned such that both

drivers were looking directly at one another out of their driver’s side windows

(i.e., the record reflects that Appellee’s vehicle did not turn left while cutting




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in front of Officer’s Burke patrol car). N.T., 1/18/18, at 13; see also Trial

Court Opinion, 2/28/18, at 4-5.

      Therefore, this case is distinguishable from Merchant, because there is

no evidence that Appellee’s driving posed an immediate clear and present

danger to persons and property, unlike the observations of the police officers

in Merchant; likewise, Officer Burke did not have probable cause to conduct

a traffic stop of Appellee for failing to yield the right of way. Here, there is no

evidence that Appellee was driving erratically, that she crossed the center line

numerous times, or that she almost hit oncoming vehicles. Indeed, the trial

court found it significant that there was no evidence that Appellee was driving

erratically. Trial Court Opinion, 2/28/18, at 5. Instead, the record reflects

that Appellee appropriately stopped at a red light, activated her signal for a

left-hand turn, and proceeded to the intersection to make a left turn when the

light turned green. Appellee proceeded into the intersection without turning

in front of or into Officer Burke’s patrol car. Accordingly, we conclude that the

trial court did not abuse its discretion in concluding that Appellee did not

present an immediate clear and present danger and therefore, that Officer

Burke violated the MPJA in stopping Appellee’s vehicle.

      Next, the Commonwealth argues that even if Officer Burke violated the

MPJA, suppression was not the appropriate remedy.            The Commonwealth

asserts that Officer Burke acted to prevent a public safety concern and that




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Appellee   never   “articulate[d]   that     she   suffered   any   prejudice.”

Commonwealth’s Brief at 23.

     In support of this claim, the Commonwealth relies on this Court’s

decision in Commonwealth v. Henry, 943 A.2d 967 (Pa. Super. 2008). In

Henry, we explained:

         Two conflicting positions have arisen in this Court on the
     question as to whether a violation of the MPJA entitles an
     aggrieved party to suppression under the exclusionary rule. In
     Commonwealth v. Bradley, 724 A.2d 351 (Pa. Super. 1999) (en
     banc), this Court noted the exclusionary rule applies to any
     evidence gathered subsequent to an MPJA violation “even if the
     officer acts in good faith or the police officer’s actions would have
     been lawful if performed within the proper jurisdictional limits.”
     Id. at 354.

        In Commonwealth v. Chernosky, 874 A.2d 123 (Pa. Super.
     2005) (en banc), [] this Court implicitly rejected the absolutist
     approach espoused in Bradley in favor of the case-by-case
     approach approved of by our Supreme Court in Commonwealth
     v. O’Shea, 567 A.2d 1023 ([Pa.] 1990). The factors to be
     considered in applying this case-by-case approach consist of “all
     the circumstances of the case including the intrusiveness of the
     police conduct, the extent of deviation from the letter and spirit of
     the [MPJA], and the prejudice to the accused.” Chernosky,
     supra at 130, quoting O’Shea, supra at 1030. The Chernosky
     Court further noted that the spirit, or purpose of, the MPJA “is to
     proscribe investigatory, extraterritorial forays used to acquire
     additional evidence where probable cause does not yet exist.” Id.

        Chernosky unquestionably sets forth the proper standard this
     Court is to employ in determining whether the exclusionary rule
     should act to suppress evidence obtained pursuant to an MPJA
     violation. Chernosky relies on an approach approved by our
     Supreme Court, is more recent than the decision rendered in
     Bradley, and sets forth a standard which allows this
     Commonwealth’s courts to tailor a remedy in situations where
     police intentionally have overstepped their boundaries while still
     affording our courts the flexibility to deny suppression when police


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     have acted to uphold the rule of law in good faith but are in
     technical violation of the MPJA.

Id. at 971-72 (some citations omitted).

     With respect to Henry, the trial court explained:

        In the present case, this [c]ourt . . . found that Officer Burke’s
     conduct in unexpectedly stopping in the middle of the intersection,
     thereby seizing and detaining [Appellee], was significantly
     intrusive, substantially deviated from the letter and spirit of the
     MPJA, and was substantially prejudicial to [Appellee].             In
     Pennsylvania, as distinct from its federal counterpart, the
     exclusionary rule serves “other values besides deterrence; it also
     vindicates an individuals right to privacy.” [Commonwealth] v.
     Johnson, 86 A.3d 182, 188 (Pa. 2014). As such, “[f]rom the
     perspective of the citizen whose rights are at stake, an invasion
     of privacy, in good faith or bad, is equally as intrusive.”
     [Commonwealth] v. Edmunds, 586 A.2d 887, 901 (Pa. 1991).
     Regarding the MPJA, its principle object is “the promotion of public
     safety while maintaining jurisdictional police lines,” which “in turn
     fosters local control over police, and discourages extra-territorial
     forays by outside law enforcement officers who are not subject to
     the control of the municipality.” Merchant, 595 A.2d at 1138,
     n.7.

         The privacy rights of the individual, police accountability to
     local authority, and the Commonwealth’s interest in public safety
     can and must be protected. Based on the evidence presented,
     Officer Burke was not out of his jurisdiction and presented with
     “an immediate clear and present danger to persons or property.”
     Instead, he was out of his jurisdiction, not subject to the local
     authority thereof, and contributed to the creation of the risk of an
     accident, where otherwise[,] this [c]ourt found [Appellee] would
     likely have passed safely behind him. On that basis, this [c]ourt
     finds that the cause and manner of [Appellee]’s seizure was
     insufficient and unreasonable under the Fourth Amendment and
     Article I, § 8. Consequently, . . . the seizure of [Appellee] was not
     merely a technical violation of the MPJA, but rather was a
     significant intrusion upon her safety and constitutionally protected
     privacy, was a substantial deviation from the MPJA’s “ultimate
     goal of maintaining police accountability to local authority,” and
     unlawfully produced evidence substantially prejudicial to her.
     Merchant, 595 A.2d at 1139. Therefore, this [c]ourt found that

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      application of the exclusionary rule was warranted under the
      MPJA[.]

Trial Court Opinion, 5/22/18, at 4-5.

      Based on our review of the certified record and the applicable case law,

we agree with the trial court’s resolution of this issue. The record reflects that

Officer Burke, while outside of his jurisdiction, conducted a traffic stop where

Appellee did not present an immediate clear and present danger to persons

or property and where he did not otherwise have probable cause to do so.

Therefore, we conclude that the trial court did not abuse its discretion in

determining that application of the exclusionary rule was appropriate based

on Officer Burke’s violation of the MPJA and the intrusion on Appellee’s

constitutional rights.

      Order affirmed.

      P.J.E. Ford Elliott joins the Opinion.

      Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/2018




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