J-S59020-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

LENO D. MESCOLOTTO

                            Appellant                 No. 3209 EDA 2013


            Appeal from the Judgment of Sentence October 24, 2013
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-SA-0000210-2013


BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                         FILED OCTOBER 10, 2014

        Leno D. Mescolotto appeals from the judgment of sentence entered in

the Court of Common Pleas of Lehigh County following his conviction for

speeding. Upon review, we affirm.

        The trial court summarized the facts of this matter as follows:

        On May 1, 2013, Officer Nathan Schlegel of the Upper Macungie
        Township Police Department was monitoring traffic on a portion
        of State Route 222 (SR-222) that runs through Upper Macungie
        Township (Township).        The Township has entered into an
        intergovernmental agreement with the Pennsylvania State Police
        (PSP) granting the Township the authority to enforce speed
        restrictions on portions of SR-222.

        At approximately 10:00 AM, Officer Schlegel was utilizing a
        VASCAR-plus® III speed timing device, which was approved by
        the Department of Transportation and was tested for accuracy
        on April 1, 2013. Schlegel observed a silver Mercedes Benz
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S59020-14


       E350m, bearing registration number HTB3223, traveling
       southbound on SR-222 and timed the vehicle traveling 75 miles
       per hour. The posted speed limit in that area is 45 miles per
       hour. Schlegel initiated a traffic stop. Before Schlegel could get
       out of his vehicle, the driver of the Mercedes, later identified as
       [. . .] Mescolotto, exited his vehicle. Schlegel exited his car and
       ordered [Mescolotto] to get back in his vehicle. [Mescolotto]
       eventually complied, and Schlegel approached the vehicle.
       Schlegel advised [Mescolotto] he was stopped for speeding, and
       obtained [Mescolotto’s] license, registration, and insurance
       information. Once he completed the citation, Schlegel asked
       [Mescolotto] to sign it. [Mescolotto] asked Schlegel twice if he
       could reduce the speed. When Schlegel said he could not,
       [Mescolotto] handed the citation back and said he would not sign
       it. Schlegel noted the refusal on the citation, gave a copy to
       [Mescolotto], and ended the traffic stop.

Trial Court Opinion, 1/22/14, at 1-2.

       On July 16, 2013, a magisterial district judge found Mescolotto guilty

of driving 75 mph in a 45 mph zone, and ordered Mescolotto to pay costs

and fines. Mescolotto filed a timely notice of summary appeal on August 14,

2013, and a motion to suppress on September 16, 2013. On October 24,

2013, the trial court denied Mescolotto’s suppression motion after a hearing.

The judge immediately proceeded to a summary appeal trial, finding

Mescolotto guilty of driving 65 mph in a 45 mph zone and ordering him to

pay costs and fines. This timely appeal followed.1

       On appeal, Mescolotto presents the following issues for our review:


____________________________________________


1
  On August 8, 2014, the Commonwealth filed a motion to supplement the
record pursuant to Pa.R.A.P. 1926. We deny the Commonwealth’s motion
because the document it seeks to enter into evidence, “The Chief of Police
Employment Agreement,” is not material to our disposition of this case.



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      1. Whether the court erred in denying the omnibus pretrial
         motion by failing to apply the clear rule of law, as set forth in
         75 Pa.C.S. § 6109(b), requiring any agreements between the
         Commonwealth of Pennsylvania and the local municipal police
         department to be adopted by ordinance of the municipality.

      2. Whether the court erred by failing to apply the requirements
         of the Pennsylvania Municipal Law, namely 53 Pa.C.S. § 2305
         and § 2315 requiring an ordinance to adopt any
         intergovernmental agreements.

      3. Whether the court erred in failing to consider the relevant
         provisions of the Pennsylvania Motor Vehicle Code, namely 75
         Pa.C.S. § 6109(a), which requires that an agreement be in
         place before speed restrictions may be enforced by local
         police and the ancillary requirements of 75 Pa.C.S. § 6109(b)
         which require that any such action by local authorities be
         taken by ordinance of the governing body.

      4. Whether the court erred in failing to comply with the
         requirements of the Pennsylvania Superior Court in
         Commonwealth v. Bable, 385 A.2d 530 (Pa. Super. 1998)
         and Commonwealth v. Shenkin, 487 A.2d 380 (Pa. Super
         1985), relating to authority of the police officer to act on the
         limited access highway under state jurisdiction.

      5. Whether the court erred by failing to consider whether the
         police officer had probable cause for the traffic stop and
         applying the totality of circumstances to make such a
         determination.

      6. Whether the court erred in failing to consider the officer’s
         testimony as suspicious based on the lack of credibility of the
         officer and based upon his actions concerning the traffic stop
         and his egregious conduct.

Brief of Appellant, at 4.   All of Mescolotto’s issues on appeal relate to the

trial court’s denial of his suppression motion. Our standard of review when

the trial court denies a suppression motion is as follows:

      [T]his Court’s review is limited to determining whether the
      court’s factual findings are supported by the record and whether
      the legal conclusions drawn from those facts are correct.
      Because the Commonwealth prevailed in the suppression court,

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        we consider only the Commonwealth’s evidence and so much of
        the appellant’s evidence as is uncontradicted when read in the
        context of the record as a whole. Where the record supports the
        suppression court’s factual findings, we are bound by those facts
        and may reverse only if the legal conclusions drawn from them
        are erroneous.

Commonwealth v. West, 937 A.2d 516, 527 (Pa. Super. 2007) (internal

citations omitted).

        The trial court’s denial of Mescolotto’s suppression motion was

premised on the validity of the “Full Time Municipal/Regional Police

Department Speed Enforcement Intergovernmental Agreement with the

Pennsylvania State Police” (Agreement).           Mescolotto asserts that Officer

Schlegel lacked authority to enforce speed restrictions on SR-222, a divided

highway, because the Agreement under which he purported to act, was a

legal    nullity.      Mescolotto      contends   that   the   Agreement   is   an

intergovernmental cooperation agreement as defined in Section 2304 of the

General Local Government Code2 and, as such, the Agreement was required

to be implemented by ordinance in order to be enforceable. See 53 Pa.C.S.


____________________________________________


2
    Section 2304 provides:
        A municipality by act of its governing body may, or upon being
        required by initiative and referendum in the area affected shall,
        cooperate or agree in the exercise of any function, power or
        responsibility with, or delegate or transfer any function, power or
        responsibility to, one or more other local governments, the
        Federal Government to any other state or its government.
53 Pa.C.S. § 2304.




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§ 2305;3 see also 75 Pa.C.S. § 6109(b).4 The Commonwealth, relying on

Stein v. DOT, Bureau of Driver Licensing, 857 A.2d 719 (Pa. Cmwlth.

2004), argues that the Municipal Police Jurisdiction Act (MPJA) 5 controls and,

therefore, the Agreement authorizing Officer Schlegel to act is valid.

        We   agree     with   Mescolotto       that    intergovernmental       cooperation

agreements are effected upon each municipality’s adoption of an ordinance.

See     53   Pa.C.S.    §§    2305,    2315.          Failure   to   do   so   renders   an

intergovernmental agreement void.              Commonwealth v. Bable, 385 A.2d

530 (Pa. Super. 1978). However, a police officer’s ability to act outside of

his jurisdiction is governed by the MPJA, not the Local Government Code. 6

Stein, supra.

____________________________________________


3
    Section 2305 provides:
        A local government may enter into intergovernmental
        cooperation with or delegate any functions, powers or
        responsibilities to another governmental unit or local
        government upon the passage of an ordinance by its governing
        body. If mandated by initiative and referendum in the area
        affected, the local government shall adopt such an ordinance.
53 Pa.C.S. § 2305.
4
  Section 6109(b) provides: “Action taken by local authorities under this
section shall be: (1) by ordinance of the local governing body; or (2) by a
commission or public official authorized to act on specified matters.” 75
Pa.C.S. § 6109(b).
5
    42 Pa.C.S. §§ 8951-8954.
6
  The Statutory Construction Act instructs that if concurrent application of
statutes is not possible, the specific provision shall prevail and be construed
as an exception to the general provision. 1 Pa.C.S. § 1933. The relevant
(Footnote Continued Next Page)


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          The MPJA authorizes a municipal police officer to act outside his

primary jurisdiction in specific circumstances. The clear purpose of the MPJA

is   to    encourage      cooperation      between     law   enforcement      agencies   by

expanding        their     primary      jurisdiction   through    official,    cooperative

agreements. Commonwealth v. Sestina, 546 A.2d 109 (Pa. Super. 1998).

Its purpose is to be liberally construed.               Id. citing Commonwealth v.

Ebersole, 492 A.2d 436 (Pa. Super. 1985). The MPJA does not, however,

require a municipality to enact an ordinance before an officer from one

municipality may take police action in another municipality. The section of

the MJPA relevant here states:

          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 form official matter within his primary jurisdiction.

42 Pa.C.S. § 8953(a)(4).

          Here, UMTPD Chief Edgardo Colon and Major Timothy Mercer, the

Director of the Bureau of Patrol of the State Police, entered into a section




                         _______________________
(Footnote Continued)

sections of the Local Government Code apply to “all local governments.” 53
Pa.C.S. § 2301. The MPJA applies only to “duly employed municipal police
officer(s).” 42 Pa.C.S. § 8953(a). Further, the MPJA enumerates a discrete
set of circumstances under which a municipal police officer may exercise
extra-territorial authority. Accordingly, the MPJA is controlling here.



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8953(a)(4) agreement on January 7, 2013.7 See Agreement 1/7/13. The

Agreement specifically authorizes UMTPD to patrol SR-222:            “The Upper

Macungie Township Police Department, [. . .], shall have the authority to

enforce speed restrictions in accordance with Title 75, Chapter 33, Subtitle

F, on the following limited-access or divided highway within its jurisdiction:

SR-222 Bypass.”         As such, UMTPD and the PSP properly executed an

agreement authorizing Macungie Township police officers to enforce speed

limits on SR-222 under the MPJA.

       Furthermore, to the extent an implementing ordinance was required,

Upper Macungie Township did implement two ordinances authorizing the

UMTPD to enforce maximum speed limits and use approved speed-timing

devices on state highways within the Township. As the Honorable James T.

Anthony astutely explained in his Pa.R.A.P. 1925(a) Opinion,

          Section 6109(a)(11) of the Vehicle Code authorizes local
          authorities to enforce speed restrictions on a divided
          highway only if it is patrolled by the local police force
          under the terms of an agreement with the PSP.
          Furthermore, § 6109(b) requires that any action taken by
          local authorities shall be by ordinance or by a public official
          authorized to act on specified matters.

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7
  Mescolotto, relying on Commonwealth v. Bable, 385 A.2d 530 (Pa.
Super. 1978), insists that police departments lack the authority to enter into
municipal cooperation agreements. Id. at 531. However, this Court made
that comment in passing and, therefore, as Mescolotto admits, it is dicta.
Moreover, 42 Pa.C.S. § 6109(a)(11) provides for this exact type of
agreement, which became effective on January 7, 2013. Therefore, Officer
Schlegel was authorized to enforce speed restrictions on SR-222.



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           Here, an agreement under § 6109(a)(11) was entered into
           by the Township and the PSP on January 7, 2013 [. . . ]
           What is required by § 6109(b) is that the “action taken by
           local authorities” – in this case, speed enforcement – be
           authorized by ordinance. The Upper Macungie [Township]
           Code does in fact authorize the police department to
           enforce maximum speed limits and to use approved speed
           timing devices. Upper Macungie Township, Pa., Code of
           Ordinances § 15-109[8] and § 15-201.         As such, the
           Township and the PSP properly executed an agreement
           authorizing the township police department to enforce
           speed limits on SR-222.

Trial Court Opinion, 1/22/14, at 3.

        Upper Macungie Township has clearly evidenced its intent that the

UMTPD enforce speeding laws within its geographical limits, without regard

to whether the roadways in questions are under county, state, or township

control.    Thus, we reject Mescolotto’s argument that the Agreement was


____________________________________________


8
    Section 15-109 provides:
        1. The Township Police Department is hereby authorized to use
        all mechanical or electronic speed-timing devices for the
        determination of speed of a motor vehicle as are approved or will
        be approved by the Department of Transportation of the
        Commonwealth of Pennsylvania, including but not limited to
        E.S.P.

        2. This Section authorizes the use of said devices upon all
        highways within the Township of Upper Macungie, be they
        Township, county or state highways, and does also hereby elect
        to exercise all powers granted to “local authorities” under the
        Pennsylvania Motor Vehicle Code, 75 P.S. §§ 1101 et seq.
        (1977), as hereafter amended, supplemented, modified or
        reenacted by the General Assembly of Pennsylvania.

[Ord. 12-86, 6/5/1986; as amended by Ord. 2007-4, 5/3/2007].




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without effect in the absence of Upper Macungie Township adopting an

implementing ordinance.

      For the aforementioned reasons, the trial court correctly concluded

that Upper Macungie Township and the PSP properly executed an agreement

authoring the UMTPD to enforce speed limits on SR-222.             Because the

Agreement is valid, Officer Schlegel had the authority to initiate a traffic stop

when he observed Mescolotto speeding on SR-222. Therefore, it was at the

discretion of the suppression court to determine whether, under the law, any

evidence relating to the traffic should have been suppressed. Because the

record supports the suppression court’s factual findings, we are bound by

those facts and will not reverse the court’s decision to deny Mescolotto’s

suppression motion.

      Mescolotto’s final two issues on appeal are waived.       Upon thorough

review of the record, it is evident that Mescolotto did not raise the issue of

probable cause in his omnibus pretrial motion, at trial, or in a post-sentence

motion.   See Pa.R.A.P. 302.      Likewise, Mescolotto did not challenge the

weight of the evidence before the trial court prior to sentencing, at

sentencing, or in a post-sentence motion.       See Pa.R.Crim.P. 607(A); see

also Commonwealth v. Holley, 945 A.2d 241, 245-46 (Pa. Super. 2008)

(this Court cannot entertain, in the first instance, a claim that the verdict is

against the weight of the evidence). Accordingly, both claims are waived.

      Judgment    of   sentence   affirmed.      Commonwealth’s      motion   to

supplement the record denied.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/2014




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