J-A16002-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MOLLY HLUBIN,

                            Appellant                 No. 951 WDA 2015


             Appeal from the Judgment of Sentence May 21, 2015
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0003205-2014


BEFORE: SHOGAN, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                           FILED OCTOBER 6, 2016

       Appellant, Molly Hlubin, appeals from the judgment of sentence

entered following her conviction of two counts of driving under the influence

of alcohol. We affirm.

       The trial court summarized the factual and procedural history of this

case as follows:

             The facts presented to this [c]ourt and found to be credible
       are as follows: on September 29, 2013, police officers from the
       West Hills DUI Task Force conducted a sobriety checkpoint on
       Steubenville Pike in Robinson Township, Pennsylvania. The West
       Hills DUI Task Force is comprised of municipal police officers
       from fifteen (15) jurisdictions in the western portion of Allegheny
       County, Pennsylvania, including Robinson Township and Moon
       Township. After the conclusion of the Suppression Hearing, the
       Commonwealth filed a Motion to Reopen the Record and Admit
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A16002-16


     New Evidence so that they could introduce, as Exhibit 4,
     Robinson Township’s Resolution 14-2003 that authorized their
     participation in the West Hills DUI Task Force. This [c]ourt
     granted that request on May 21, 2015.

           At the Suppression Hearing, the Commonwealth presented
     testimony of Sergeant Douglas Ogden, who is a Patrol Sergeant
     with the Moon Township Police Department. Sergeant Ogden
     has been with the Moon Township Police Department since 1996
     and has been in law enforcement since 1989. Sergeant Ogden is
     the Program Coordinator and Project Manager for the West Hills
     DUI Task Force. In addition to administrative tasks such as
     applying for grants and managing statistics, Sergeant Ogden
     organizes the checkpoints and road patrols and conducts training
     for the officers involved in checkpoints and DUI enforcement and
     detection. Sergeant Ogden testified that his statistical analysis
     showed that most of the DUI arrests and crashes in Robinson
     Township occurred at Steubenville Pike. The West Hills DUI Task
     Force has policies in place to identify target locations for DUI
     checkpoints, which [were] admitted into evidence as
     Commonwealth’s Exhibit 1. The West Hills DUI Task Force Policy
     and Procedural Guidelines require that the grant coordinator, or
     his designee, be present at all DUI checkpoints.

           Sergeant Ogden testified that he requested a DUI
     checkpoint from September 28, 2013 at 11[:00] p.m. through
     September 29, 2013 at 4:00 a.m. to coordinate with the ending
     time of a concert at the Star Amphitheater because historically
     Robinson Township has difficulty with drunk drivers following
     concerts at that venue. On September 23, 2013, Robinson
     Township Police authorized this DUI checkpoint. Thereafter,
     Sergeant Ogden sent out the required press releases and the
     request for manpower. At the time the checkpoint begins,
     Sergeant Ogden and the officer in charge assign officers from
     each municipality specific tasks with the officers from the home
     agency who are qualified to administer DUI Field Sobriety Tests
     being assigned to the testing area. Generally, Sergeant Ogden,
     as grant coordinator, is in the area of the DUI trailer and testing
     area assisting officers there, however, he also can fill in where
     needed when manpower is depleted.

          Sergeant Ogden was present at the September 28, 2013
     DUI checkpoint on Steubenville Pike in Robinson Township. At
     12:25 a.m., he was filling in on the road because the line had

                                    -2-
J-A16002-16


      become depleted of manpower. At this time, he came into
      contact with [Appellant], who was the driver of a vehicle. After
      introducing himself, Sergeant Ogden asked for her driver’s
      license, registration, and proof of insurance. [Appellant] initially
      handed him her Target credit card.         While [Appellant] was
      obtaining her documentation, Sergeant Ogden noticed an odor
      [of] alcoholic beverages coming from the vehicle and that
      [Appellant] had slurred speech.          In addition, [Appellant]
      admitted that she had a shot and a beer. Sergeant Ogden then
      escorted her to the testing area, explained the testing
      procedure, and handed her over to Officer Sicilia of the Robinson
      Township Police Department. Thereafter, Sergeant Ogden had
      no direct contact with [Appellant].

             Officer Dominic Sicilia, a police officer with Robinson
      Township, testified that he was working the testing area in the
      DUI checkpoint on Steubenville Pike in Robinson Township on
      September 28-29, 2013. He further testified that he came into
      contact with [Appellant] while he was working the checkpoint.
      He testified that he explained that she was going to be asked to
      perform three field sobriety tests: the HGN test, the walk-and-
      turn test, and the one-legged stand test. [Appellant] was given
      instructions on how to perform each test prior to administration
      of the test, and understood the directions. With regard to the
      HGN test, Officer Sicilia was looking for six (6) clues, and
      observed all six (6) clues. Further, [Appellant] exhibited two (2)
      out of eight (8) clues for the walk-and-turn test. [Appellant]
      exhibited one (1) out of four (4) clues for the one-legged stand
      test. Based upon his experience with intoxicated persons, his
      training as a police officer, the information provided by Sergeant
      Ogden, and his interaction with [Appellant], Officer Sicilia formed
      an opinion that [Appellant] was incapable of safely operating a
      motor vehicle. Thereafter, [Appellant] consented to a blood
      draw, and was found to have a blood alcohol content of .152%.

Trial Court Opinion, 1/5/16, at 2-5 (internal citations omitted).

             By way of Criminal Complaint, [Appellant] was charged
      with two counts of Driving Under the Influence of Alcohol in
      violation of 75 Pa.C.S.A. §3802(b) (having a BAC of .10% to less
      than .16%) and 75 Pa.C.S.A. §3802(a)(1) (general impairment)
      for [the] incident that occurred on September 29, 2013.




                                     -3-
J-A16002-16


            On March 13, 2015, this [c]ourt heard [Appellant’s] Motion
     to Suppress, which was denied on May 21, 2015. The matter
     proceeded to a non-jury trial on May 21, 2015 wherein the
     Commonwealth and [Appellant] stipulated to the admission of
     the suppression hearing testimony of Officer Sicilia and Sergeant
     Ogden as well as the crime lab results of [Appellant’s] blood test.
     Thereafter, [Appellant] was found guilty of both counts of DUI.
     [Appellant] waived her right to a pre-sentence report and the
     matter proceeded to sentencing. [Appellant] was sentenced to
     thirty (30) days of Restrictive Intermediate Punishment, six (6)
     months of non-reporting probation, and the mandatory fines and
     stipulations.

           On June 16, 2015, [Appellant] filed [a] Notice of Appeal.
     Via Order of Court dated June 22, 2015, Counsel for [Appellant]
     was directed to file a Concise Statement of Matters Complained
     of [on] Appeal. [Appellant] filed her Concise Statement on July
     1, 2015[.]

Trial Court Opinion, 1/5/16, at 1-2. The trial court filed an opinion pursuant

to Pa.R.A.P. 1925(a).

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

     A.    Whether or not the West Hills DUI Task Force, comprised
     of police officers from fifteen (15) different municipalities, was
     lawfully created and possessed the requisite jurisdiction pursuant
     to the Intergovernmental Cooperation Act, 53 Pa.C.S.A. § 2303,
     et. seq., to conduct a DUI sobriety checkpoint on Steubenville
     Pike in Robinson Township, PA, which led to the Appellant’s stop,
     detention and arrest?

     B.    Whether or not Sergeant Ogden, the Moon Township, PA,
     police officer that organized and oversaw the West Hills DUI Task
     Force DUI sobriety checkpoint located on Steubenville Pike in
     Robinson Township, PA, had jurisdiction pursuant to the
     Municipal Police Jurisdiction Act, 42 Pa.C.S.A. § 8953, or the
     Intergovernmental Cooperation Act, 53 Pa.C.S.A. § 2303, et.
     seq., to stop and detain the Appellant for an offense that
     occurred in Robinson Township, PA?




                                    -4-
J-A16002-16


       C.    Whether or not Officer Sicilia had sufficient probable cause
       to arrest the Appellant for the offense of DUI and to request a
       chemical test?

Appellant’s Brief at 4.

       All of Appellant’s issues relate to the trial court’s denial of her

suppression motion. Appellant’s Brief at 14. Our standard of review when

the trial court denies a suppression motion is as follows:

       When considering the denial of a suppression motion, this
       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, 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).

       In her first issue, Appellant argues that the trial court erred when it

ruled that the West Hills DUI Task Force (“Task Force”) was lawfully created

and had jurisdiction to stop, detain, and arrest Appellant at the sobriety

checkpoint in Robinson Township.1              Appellant’s Brief at 15.   Appellant

contends that Pennsylvania law does not allow municipal officers from

____________________________________________


1
  We, like the trial court, interpret this issue as solely a challenge to the
legitimacy of the Task Force and not to the operation of the checkpoint itself.
See Trial Court Opinion, 1/5/16, at 5.



                                           -5-
J-A16002-16


multiple jurisdictions to loosely band together to form a task force and cross

jurisdictional lines for the purpose of conducting a DUI sobriety checkpoint.

Id.   Appellant maintains that the Intergovernmental Cooperation Act, 53

Pa.C.S. 2302, et. seq. governs agreements and cooperation between

municipalities.     Id.   The Act permits municipalities to jointly cooperate;

however, it requires a specific statutory process that must be followed. Id.

Appellant asserts that process was not followed in this case. Id. Appellant

avers that “[t]here was no evidence presented of any signed, or even

written, joint agreement between the participating municipalities that was

adopted by ordinance; therefore, the West Hill DUI Task Force did not legally

exist or have jurisdiction to enforce the laws of the Commonwealth on behalf

of the municipalities.” Id. at 21. Accordingly, Appellant posits that the Task

Force lacked jurisdictional authority to conduct the DUI checkpoint at issue

herein. Id. at 20.2

       The Intergovernmental Cooperation Act, (“ICA”), 53 Pa.C.S. §§ 2301-

2317, applies to all local governments.          53 Pa.C.S. § 2301.     “Local

governments” are defined as: “A county, city of the second class, second
____________________________________________


2
  We note that the Commonwealth fails to present any argument on this
issue other than to state that: “It is the position of the Commonwealth that
exactly what type of entity West Hills DUI Task Force is and how it came into
creation is irrelevant as the Municipal Police Jurisdiction Act (MPJA), 42
Pa.C.S.A. § 8951, et seq. authorizes police officers to act outside of their
primary jurisdiction.” Commonwealth’s Brief at 13. The application of the
MPJA to this matter is discussed subsequently in addressing Appellant’s
second issue.



                                           -6-
J-A16002-16


class A and third class, borough, incorporated town, township, school district

or any other similar general purpose unit of government created by the

General Assembly after July 12, 1972.” 53 Pa.C.S. § 2302. The additional

provisions of the Act relevant to the pending issue provide the following:

      § 2303. Intergovernmental cooperation authorized

      (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.

      § 2304. Intergovernmental cooperation

      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 or any other state or its government.

53 Pa.C.S. § 2304.

      § 2305. Ordinance

      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.


                                     -7-
J-A16002-16


53 Pa.C.S. § 2305 (emphasis added).

       § 2315. Effect of joint cooperation agreements

       Any joint cooperation agreement shall be deemed in force as to
       any local government when the agreement has been adopted
       by ordinance by all cooperating local governments. After
       adoption by all cooperating local governments, the agreement
       shall be binding upon the local government, and its covenants
       may be enforced by appropriate remedy by any one or more of
       the local governments against any other local government which
       is a party to the agreement.

53 Pa.C.S. § 2315 (emphasis added).

       Thus, intergovernmental cooperation agreements are effected upon

each municipality’s adoption of an ordinance;  failure to do so renders an

intergovernmental agreement void.              Stein v. Com., Dept. of Transp.,

Bureau of Licensing, 857 A.2d 719, 724 (Pa. Cmwlth. 2004);3 see also

Summit Tp. Indus. and Economic Development Authority v. County of

Erie, 980 A.2d 191, 209-210 (Pa. Cmwlth. 2009) (county could not enter

into intergovernmental cooperative agreements with other municipalities and

distribute   revenue      to   such    municipalities   without   the   county   and

municipalities first passing ordinances adopting the agreements).


____________________________________________


3
  “Although decisions of the Commonwealth Court are not binding on this
Court, we may rely on them if we are persuaded by their reasoning.”
NASDAQ OMX PHLX, Inc. v. PennMont Secs., 52 A.3d 296, 308 n.7 (Pa.
Super. 2012); see also Commonwealth v. Rodriguez, 81 A.3d 103, 107
n.7 (Pa. Super. 2013) (“Although the decisions of the Commonwealth Court
are not binding upon this Court, they may serve as persuasive authority.”).




                                           -8-
J-A16002-16


        The   Commonwealth         presented     five   exhibits.       We   note   that

Commonwealth Exhibits 1, 2, 3 and 5 are not included in the certified

record.4

        The law of Pennsylvania is well settled that matters which are
        not of record cannot be considered on appeal . . . any document
        which is not part of the officially certified record is deemed non-
        existent—a deficiency which cannot be remedied merely by
        including copies of the missing documents in a brief or in the
        reproduced record.

Commonwealth           v.   Preston,     904     A.2d   1,   6   (Pa.   Super.   2006).

Additionally, the appellant has the responsibility “to make sure that the

record forwarded to an appellate court contains those documents necessary

to allow a complete and judicious assessment of the issues raised on

appeal.”      Commonwealth v. Walker, 878 A.2d 887, 888 (Pa. Super.

2005).

        Nevertheless, Appellant’s failure to include these exhibits in the

certified record does not hamper our review. Thorough descriptions of the

documents identified as the respective exhibits are provided in the

suppression hearing and nonjury stipulated trial transcripts. In addition, the

exhibits are included in the reproduced record and match the detailed

descriptions provided in the transcripts. Having an understanding of these

exhibits, we note that none establishes that the Task Force was lawfully

created or had authority to conduct the sobriety checkpoint at issue.
____________________________________________


4
    Commonwealth Exhibit 4 is included in the certified record.



                                           -9-
J-A16002-16


Additionally, none of the five exhibits relied upon by the Commonwealth

proves that the Task Force was created by a joint cooperation agreement.

Moreover, there was no evidence presented that participating member

municipalities had adopted ordinances for purposes of joining and creating

the Task Force.

      Specifically, Commonwealth Exhibit 1 was the Task Force policy and

procedural guidelines for conducting sobriety checkpoints.     These policies

and procedures simply outline criteria for establishing a sobriety checkpoint.

Despite listing the fifteen municipalities that allegedly participated in the

Task Force, they do not constitute a joint cooperation agreement nor do they

reflect that the Task Force was lawfully created. Commonwealth Exhibit 2 is

a blank form used by the Task Force to obtain authorization from the host

municipality   for   purposes   of    conducting   a   sobriety   checkpoint.

Commonwealth Exhibit 3 is a sobriety checkpoint authorization form

executed by the Chief of Robinson Township police Department authorizing

the sobriety checkpoint held on September 28-29, 2013.

     Commonwealth Exhibit 4 is a resolution from Robinson Township. As

noted, this Exhibit is included in the certified record.     This document,

Resolution 14-2003, provides as follows:

           BE IT RESOLVED, by the authority of the Board of
     Commissioners of the Township of Robinson, Allegheny County,
     and it is hereby resolved by authority of the same, that the
     Township Manager of said Municipality, authority be authorized
     and directed to sign the attached agreement on its behalf.


                                     - 10 -
J-A16002-16


              Further be resolved that the Township of Robinson shall
       participate with the West Hills DUI Task Force for the purpose of
       promoting safer highways in the Commonwealth by educating
       and enforcing driving under the influence of alcohol or drugs
       statutes.

             I Timothy Little, Township Manager of the Township of
       Robinson do hereby certify that the foregoing is a true and
       correct copy of the resolution adopted at the regular meeting of
       the Board of Commissioners held the 14 of July, 2003.

Commonwealth’s Exhibit 4; attachment to the Commonwealth’s motion to

reopen the record and admit new evidence.

       As outlined above, pursuant to 53 Pa.C.S. §§ 2305 and 2315, a joint

cooperation agreement shall be deemed in force when the agreement has

been adopted by ordinance. Commonwealth Exhibit 4 is a resolution, not an

ordinance.5      Accordingly, the exhibit fails to establish that Robinson

Township lawfully entered into the joint cooperation agreement that

allegedly created the Task Force.6 Moreover, the resolution did not serve to


____________________________________________


5
  The Commonwealth Court explained the difference between a resolution
and an ordinance in Middletown Tp. v. County of Delaware Uniform
Const. Code Bd. of Appeal, 42 A.3d 1196 (Pa. Cmwlth. 2012). “Passing
an ordinance is accompanied by particular formalities, including notice to
residents to provide them the opportunity to voice their concerns with the
municipality’s proposed actions.” Id. at 1201. “As a general rule, a
resolution does not have the effect of a law or an ordinance. It is usually
viewed merely as ‘a formal expression of the opinion or will of an official
body or a public assembly, adopted by vote.’” Id. at 1202 n.8.
6
  In Middletown Tp., the Commonwealth Court addressed an issue similar
to that presented herein. In that case, the Court determined that the
township had not lawfully entered into a joint cooperation agreement under
(Footnote Continued Next Page)


                                          - 11 -
J-A16002-16


establish that the Task Force was a lawfully created joint cooperation

agreement pursuant to 53 Pa.C.S. §§ 2305, 2315.

      Finally, Commonwealth Exhibit 5 was the lab results that established

Appellant’s blood alcohol content. Thus, this exhibit was not relevant to the

determination of whether the Task Force was lawfully created and its

authority to conduct the sobriety checkpoint at issue.

      The record is devoid of any evidence that the Task Force was lawfully

created.   Without establishing the lawful creation of the Task Force, the

Commonwealth has failed to establish that it had the authority to carry out

the sobriety checkpoint at issue. Therefore, we cannot agree with the trial

court’s conclusion that the DUI checkpoint was a valid exercise of the joint

governmental cooperation agreement.

      Consequently, we consider Appellant’s second issue in the context of

determining whether officers had another lawful basis upon which to stop

and arrest Appellant.         In her second claim, Appellant argues that Moon

Township Police Sergeant Ogden did not have jurisdiction to stop and detain

Appellant for a DUI offense in Robinson Township. Appellant’s Brief at 27.

Appellant contends that Sergeant Ogden did not have authority to detain

Appellant outside of his primary jurisdiction, and “none of the MPJA’s

enumerated ways in which an officer may lawfully exercise his authority
                       _______________________
(Footnote Continued)

the ICA because it had passed a resolution, as opposed to an ordinance, in
an attempt to join the agreement. Id. at 1201-1202.



                                           - 12 -
J-A16002-16


outside of his primary jurisdiction exist in the present case.” Id. at 27-28.

Thus, Appellant contends, the trial court erred when it ruled that the DUI

sobriety checkpoint at issue complied with the MPJA. Id. at 31.

      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). “The courts of this Commonwealth

have consistently held that in applying the MPJA in a manner that

effectuates its purpose, we should construe its provisions liberally.”

Commonwealth v. Peters, 915 A.2d 1213, 1218 (Pa. Super. 2007).

            This Act is not among those statutes which must be strictly
      construed under the rules of statutory construction, but instead
      is subject to liberal construction to effectuate its objectives and
      to promote justice.        Commonwealth v. McHugh, 413
      Pa.Super. 572, 605 A.2d 1265 (1992). Specifically, one of the
      principle objectives to be obtained by this Act is to promote
      public safety while maintaining jurisdictional police lines.
      Commonwealth v. Merchant, 528 Pa. 161, 595 A.2d 1135
      (1991). However, as our Supreme Court stated in Merchant,
      “the    General     Assembly     recognized    that    constructing
      impenetrable jurisdictional walls benefited only the criminals
      hidden in their shadows.” Id. at 169, 595 A.2d at 1139.

Id. at 1217-1218 (internal citations omitted).

      The pertinent exception of the MPJA relevant to the instant case

states:

      § 8953. Statewide municipal police jurisdiction

      (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

                                    - 13 -
J-A16002-16


     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.

42 Pa.C.S. § 8953(a)(3).

     The trial court concluded that Sergeant Ogden had jurisdiction to stop

Appellant at the checkpoint in Robinson Township pursuant to section

8953(a)(3). Trial Court Opinion, 1/5/16, at 6. The trial court reasoned that

Sergeant Ogden was at the sobriety checkpoint pursuant to the request for

assistance from the Chief of the Robinson Township Police Department. Id.

at 7. We agree. The record reflects that Sergeant Ogden had authority to

conduct the stop of Appellant based on Robinson Township Police Chief’s

request for assistance for purposes of conducting the sobriety checkpoint.

     Furthermore, we recognize that even if there had been a technical

violation of the MPJA, suppression would not be warranted.

            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, citing Commonwealth v. Brandt, 456
     Pa.Super. 717, 691 A.2d 934, 939 (1997), appeal denied 549
     Pa. 695, 700 A.2d 437 (1997).

                                   - 14 -
J-A16002-16



              In Commonwealth v. Chernosky, 874 A.2d 123
       (Pa.Super.2005) (en banc), appeal denied 588 Pa. 747, 902
       A.2d 1238 (2006), 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, 523 Pa. 384, 567 A.2d 1023 (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. at 130, citing Commonwealth v. Laird, 797
       A.2d 995, 999 (Pa.Super.2002).

             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 have acted to uphold the rule of law in good faith but are
       in technical violation of the MPJA. See also Commonwealth v.
       Peters, 915 A.2d 1213, 1222 n. 2. (Pa.Super.2007), appeal
       granted [938 A.2d 988].

Commonwealth v. Henry, 943 A.2d 967, 972-973 (Pa. Super. 2008).

       Here, Sergeant Ogden acted in good faith at the sobriety checkpoint

he believed to be lawfully conducted.7 Thus, even if Sergeant Ogden were in

____________________________________________


7
   We do not conclude by implication that the sobriety checkpoint was
unlawfully conducted. Rather, as explained in our discussion of Appellant’s
first issue, we concluded that the Commonwealth failed to establish that the
(Footnote Continued Next Page)


                                          - 15 -
J-A16002-16


technical violation of the MPJA, when viewed in light of all the circumstances,

such technical violation would not result in suppression.              See Henry, 943

A.2d at 972 (where police officer was in technical violation of the MPJA, but

the violation was unintentional, this Court determined that when viewed in

light of all the circumstances the violation did not warrant the application of

the exclusionary rule and suppression). Accordingly, we conclude that the

trial court did not err in refusing to suppress the evidence resulting from the

stop, detention, and arrest of Appellant.

      In her third issue, Appellant argues that Officer Sicilia did not have

probable cause to arrest Appellant or to request a chemical test from

Appellant.   Appellant’s Brief at 32.            Appellant asserts that Officer Sicilia’s

observations of Appellant and testimony regarding the same were not

sufficient to establish probable cause that Appellant had been driving under

the influence. Id. at 24-40.

      The Pennsylvania Supreme Court has explained the following with

regard to sobriety checkpoints:

      Although the stopping of a motor vehicle at a sobriety checkpoint
      constitutes a seizure for constitutional purposes, such checkpoint
      stops are not per se unreasonable, and hence are not per se
                       _______________________
(Footnote Continued)

Task Force was properly created pursuant to the Intergovernmental
Cooperation Act and that the sobriety checkpoint was lawfully conducted on
that basis. Here, our reference to the lawfulness of the sobriety checkpoint
is solely for purposes of addressing Sergeant Ogden’s intent in stopping
Appellant during the checkpoint and his belief that the sobriety checkpoint
was lawfully conducted.



                                           - 16 -
J-A16002-16


         unconstitutional under either the Fourth Amendment to the
         United States Constitution or Article I, Section 8 of the
         Pennsylvania Constitution. . . . [T]he United States Supreme
         Court concluded that sobriety checkpoints do not offend the
         Fourth Amendment because they are a reasonable means of
         advancing a vital public interest, involving only a modest
         intrusion on the privacy and liberty of motorists. Similarly, we
         have held that systematic, non-discriminatory, non-arbitrary
         checkpoints do not offend the Pennsylvania Constitution.

Commonwealth v. Worthy, 957 A.2d 720, 724 (Pa. 2008) (internal

citations and footnote omitted).

         Moreover, this Court has explained the following with regard to a

warrantless arrest:

                Probable cause to arrest exists when the facts and
         circumstances within the police officer’s knowledge and of which
         the officer has reasonably trustworthy information are sufficient
         in themselves to warrant a person of reasonable caution in the
         belief that an offense has been committed by the person to be
         arrested.    Probable cause justifying a warrantless arrest is
         determined by the ‘totality of the circumstances.’ [P]robable
         cause does not involve certainties, but rather the factual and
         practical considerations of everyday life on which reasonable and
         prudent men act. It is only the probability and not a prima facie
         showing of criminal activity that is a standard of probable cause.

Commonwealth v. Dommel, 885 A.2d 998, 1002 (Pa. Super. 2005)

(internal citations and quotations omitted).

         The trial court provided the following explanation in addressing this

issue:

         Officer Sicilia credibly testified that [Appellant] smelled of
         alcohol, exhibited bloodshot and glassy eyes, and did not
         successfully complete the field sobriety tests. In addition to his
         observations, Sergeant Ogden had advised [Officer Sicilia] that
         [Appellant] admitted to consuming a “shot and a beer” and had
         provided her Target credit card instead of her driver’s license.

                                       - 17 -
J-A16002-16


       Based upon his experience and observations, Officer Sicilia
       concluded that [Appellant] was incapable of safely operating her
       vehicle. As such, this [c]ourt found that Officer Sicilia had
       probable cause to arrest [Appellant] for DUI.

Trial Court Opinion, 1/5/16, at 7-8.

       Although Appellant challenges the substance and reliability of Officer

Sicilia’s testimony in establishing probable cause, the trial court found his

testimony to be credible.        See Commonwealth v. Gallagher, 896 A.2d

583, 585 (Pa. Super. 2006) (“It is within the suppression court’s sole

province as factfinder to pass on the credibility of witnesses and the weight

to be given their testimony.”).          Additionally, Sergeant Ogden’s testimony

regarding Appellant’s behavior supported Officer Sicilia’s determination.

Under the totality of the circumstances, therefore, an officer exercising

reasonable caution would have had probable cause to believe that Appellant

had been driving under the influence of drugs or alcohol. Accordingly, we

conclude that the trial court did not err in determining that Officer Sicilia had

probable cause to arrest Appellant for DUI. See Commonwealth v. Salter,

121 A.3d 987, 995 (Pa. Super. 2015) (probable cause for DUI arrest existed

with an odor of alcohol, glassy eyes, appellee’s admission that she had two

glasses of wine, and poor performance on field sobriety tests.).8

____________________________________________


8
  Despite raising it in her brief, Appellant failed to raise any challenge to
Officer Sicilia’s request for a chemical test in her Pa.R.A.P. 1925(b)
statement.     Therefore, this issue is waived. See Commonwealth v.
Dowling, 883 A.2d 570, 578 (Pa. 2005) (citing Commonwealth v. Lord,
(Footnote Continued Next Page)


                                          - 18 -
J-A16002-16


      Judgment of sentence affirmed.

      Judge Olson joins the Memorandum.

      Judge Strassburger files a Dissenting Memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2016




                       _______________________
(Footnote Continued)

719 A.2d 306, 309 (Pa. 1998)) (The failure to raise an issue in an ordered
Rule 1925(b) statement results in waiver of that issue on appeal.).



                                           - 19 -
