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2024 PA Super 222
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
STEVEN G. EAKIN : No. 1113 WDA 2021
Appeal from the Order Entered September 8, 2021
In the Court of Common Pleas of Venango County Criminal Division at
No(s): CP-61-CR-0000647-2017
BEFORE: LAZARUS, P.J., BOWES, J., DUBOW, J., NICHOLS, J., MURRAY, J.,
McLAUGHLIN, J., KING, J., SULLIVAN, J., and BECK, J.
OPINION BY BOWES, J.: FILED: September 25, 2024
The Commonwealth of Pennsylvania appeals from the order granting
Steven G. Eakin’s suppression motion. The trial court granted the motion on
the basis that the traffic stop was conducted by an officer operating outside
of his primary jurisdiction, and his actions were not authorized by the
Intergovernmental Cooperation Act (“ICA”) or the Municipal Police Jurisdiction
Act (“MPJA”). Since we conclude that suppression was not an appropriate
remedy for the technical violations in this case, we reverse and remand for
further proceedings.
Prior to reciting the undisputed facts of this case, we begin by briefly
setting forth the framework within which Chief Edward Sharp of the Polk
Borough Police Department encountered Appellee in Frenchcreek Township.
In 2006, Polk Borough and Frenchcreek Township entered into a joint
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municipal police agreement whereby Frenchcreek paid Polk to provide law
enforcement services. Those services, which had been provided from 2006
through the time of the stop at issue in this case in 2017, included Polk
Borough police patrolling within Frenchcreek to enforce the Vehicle and Crimes
Codes. See Joint Municipal Agreement, 4/13/06, at ¶ 2(a)(1), (2).
The version of the ICA in effect at the time of the agreement required
adoption of such an agreement by ordinance. Specifically, that version
provided in pertinent part as follows: “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 (effective 1996-2020).1 Polk Borough properly
passed an ordinance adopting the 2006 agreement, but Frenchcreek Township
only entered a resolution to adopt the agreement.
With this background, we turn to the disputed stop. On August 11,
2017, Chief Sharp was traveling on Georgetown Road in Frenchcreek
Township and observed Appellee’s vehicle driving east in the westbound lane
for approximately one-half mile. Chief Sharp conducted a traffic stop shortly
before 9:00 p.m., and immediately recognized Appellee, his longtime friend,
as the driver. The two had, among other things, worked together on the
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1 The legislature subsequently amended the ICA to expressly permit adoption
of such an agreement by ordinance or resolution. See 53 Pa.C.S. § 2305(a).
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campaign for Venango County Court of Common Pleas President Judge Oliver
Lobaugh. Chief Sharp observed a martini glass with two olives in the center
console. When asked about the glass, Appellee “picked it up” and “threw it
onto the . . . floor on the side[.]” N.T. Suppression, 8/27/21, at 48. As Chief
Sharp and Appellee began to converse, Appellee stated that “Ollie’s not gonna
like this.” Id. Chief Sharp replied, “Let’s not go there[,]” but Appellee
continued to say “Ollie’s not gonna like this” and “[y]ou and I are friends.”
Id. Based on the foregoing, Chief Sharp radioed for another officer to take
over the traffic stop.
Sergeant Alan Heller, also of the Polk Borough Police Department,
arrived on scene to relieve Chief Sharp.2 After independently determining that
Appellee exhibited signs of driving under the influence of alcohol (“DUI”),
Sergeant Heller inquired about conducting field sobriety tests, but Appellee
indicated he was unable to perform the tests. Therefore, Sergeant Heller
transported Appellee for a blood draw to determine his blood alcohol content
level. Since Appellee agreed to the blood draw, the sergeant did not inform
him of the consequences of refusing to comply. The blood draw confirmed his
blood alcohol content level as 0.16%. Based on the foregoing, Sergeant Heller
decided to charge Appellee with DUI.
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2 At the time of the hearing, Sergeant Heller had retired from Polk Borough
and had become the chief of police elsewhere. See N.T. Suppression,
8/27/21, at 21-22. For ease of reference, we will refer to him within this
opinion using his Polk Borough title.
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Appellee, proceeding pro se, filed a suppression motion, which the court
denied, and was convicted following a jury trial. On direct appeal, this Court
vacated his judgment of sentence because he had not properly waived his
right to counsel prior to his suppression hearing. See Commonwealth v.
Eakin, 242 A.3d 387,
2020 WL 6392480 (Pa.Super. 2020) (non-precedential
decision). Therefore, we remanded the matter back to the trial court for a
new suppression hearing where Appellee could either proceed with counsel or
validly waive his right to counsel and proceed pro se. After electing to proceed
pro se, Appellee filed another motion to suppress the results of his blood draw
and the evidence obtained during the traffic stop. It is the result of this second
suppression motion that is the subject of this appeal.
Of relevance, Appellee challenged the validity of the extra-jurisdictional
traffic stop by Polk Borough police in Frenchcreek Township. Since the version
of the ICA in effect at the time of the stop required adoption of a joint
municipal agreement by ordinance, and Frenchcreek had only entered a
resolution, Appellee argued that the evidence from the stop should be
suppressed because the Polk Borough officers were not acting pursuant to an
ICA-compliant joint agreement. Similarly, he contended that while the MPJA
provides six exceptions for extra-judicial police conduct, see 42 Pa.C.S.
§ 8953(a), none of them applied. See Omnibus Pretrial Motion, 4/23/21, at
¶¶ 16-21. Thus, he averred that the officers lacked the authority to stop him
and that the evidence obtained during the traffic stop should be suppressed.
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Noting that Polk Borough police had been providing policing services to
Frenchcreek Township since 2006, and that “Frenchcreek clearly intended to
permit Polk Borough Police Department to perform law enforcement duties
within Frenchcreek[,]” the Commonwealth insisted that the legislative
purposes behind the MPJA were met in this case and suppression was
therefore unwarranted. See Commonwealth’s Answer, 6/3/21, at ¶¶ 11-18.
The court held a suppression hearing on August 27, 2021, and heard
from Sergeant Heller and Chief Sharp. The parties agreed to the admission
of the 2006 Joint Municipal Agreement, the 2018 Joint Municipal Agreement,
the 2018 ordinance from Polk Borough, and emails between the two
jurisdictions regarding the agreement to provide police services. In
summarizing the import of those documents, the parties stipulated “that the
2006 Joint Municipal Agreement was amended [after the traffic stop at issue]
and fixed to cure legal deficiencies[.]” N.T. Suppression, 8/27/21, at 59-60.
Those “legal deficiencies” form the crux of this appeal.
At the conclusion of the suppression hearing, the Commonwealth argued
that suppression was not an appropriate remedy because, despite the
improper procedure to enforce the 2006 agreement, the local governments
had been operating pursuant to that agreement for over ten years. Id. at 71-
72, 77. Appellee, meanwhile, contended that the agreement was a legal
nullity because it did not comply with the ICA. Id. at 73. He relied upon
Commonwealth v. Hlubin, 208 A.3d 1032 (Pa. 2019), wherein the High
Court considered the intrusiveness of a sobriety checkpoint involving
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cooperation among multiple police jurisdictions, and implored the court to
grant his suppression motion.
After taking the matter under advisement, the trial court granted
Appellee’s motion to suppress the evidence resulting from the traffic stop.3
The Commonwealth filed a motion for reconsideration, noting, inter alia, that
the legislature had, in direct response to Hlubin, amended § 8953(a)(3), one
of the MPJA exceptions, because it disagreed with the Supreme Court’s
interpretation. See Motion for Reconsideration, 9/9/21, at unnumbered 1-2.
The trial court denied the Commonwealth’s motion, finding that § 8953(a)(3)
did not apply, and that because an ordinance was not passed, Chief Sharp
“lacked authority to stop [Appellee]” in Frenchcreek Township. Order,
9/14/21, at 2-3.
This appeal followed, wherein the Commonwealth certified that the
suppression order substantially handicapped the prosecution of Appellee in
this case. The Commonwealth complied with the court’s order to file a
Pa.R.A.P. 1925(b) statement. In lieu of a Rule 1925(a) opinion, the trial court
directed us to its September 14, 2021 order. On appeal, the Commonwealth
sets forth three issues for our consideration:
1. Whether the trial court erred in granting Appellee’s motion to
suppress by relying only on Hlubin, where Hlubin involved a
police sergeant who conducted a stop and arrest in a prearranged
sobriety checkpoint located outside of his primary jurisdiction.
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3 The court denied Appellee’s challenge to the blood draw because it
determined that he had validly consented to it. See Order of Court, 9/8/21,
at 2-3. That portion of the suppression motion is not before us.
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2. Whether the trial court erred in granting Appellee’s motion to
suppress, as our learned Superior Court has consistently found
that suppression of evidence is not an appropriate remedy for a
technical violation of the [MPJA].
3. Whether the trial court erred in granting [Appellee]’s motion to
suppress, due to the Pennsylvania legislature amending [§] 8953
of the [MPJA] with the “explicit intent to reverse the Supreme
Court’s interpretation of the MPJA in Hlubin.”
Commonwealth’s brief at 4 (cleaned up).
In essence, the Commonwealth seeks reversal of the trial court’s
conclusion that suppression was an appropriate remedy for the ICA and MPJA
violations. A panel of this Court considered these issues and filed a
memorandum decision affirming the trial court’s order.4 The Commonwealth
sought reargument before this Court en banc, which we granted. As a result,
we withdrew our prior panel writings, permitted substituted briefing, and
entertained oral argument.5 The matter is now ripe for our consideration.
We begin with our well-settled standard of review. “When reviewing an
order granting a motion to suppress we are required to determine whether
the record supports the suppression court’s factual findings and whether the
legal conclusions drawn by the suppression court from those findings are
accurate.” Commonwealth v. Henry, 943 A.2d 967, 969 (Pa.Super. 2008)
(cleaned up). In the case sub judice, the facts are uncontroverted. Rather,
this case hinges on the trial court’s application of the law to those facts. In
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4 The author of this opinion sat on that three-judge panel and submitted a
dissenting memorandum.
5 We note that Appellee retained private counsel after we granted reargument.
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that regard, our standard of review is de novo and “[o]ur scope of review over
the suppression court’s legal conclusions . . . is plenary.” Id. (citations
omitted).
There is no dispute that the 2006 Joint Municipal Agreement was not
properly enacted by an ordinance in both municipalities, as was required by
the ICA at that time. Therefore, Chief Sharp’s conduct in Frenchcreek
Township was not authorized by the ICA, and he was thus acting outside his
primary jurisdiction when he stopped Appellee. As noted, the MPJA provides
exceptions for when an officer may perform police services outside the officer’s
primary jurisdiction. The Commonwealth conceded in its initial brief to this
Court that the MPJA had been violated, and it is evident that none of the
exceptions apply. See Commonwealth’s brief at 15-16. Accordingly, the only
question before this Court is whether suppression was an appropriate remedy
for the stop, which was conducted in violation of the ICA and MPJA.
Suppression may be deemed an appropriate remedy “depending upon
all of the circumstances of the case including the intrusiveness of the police
conduct, the extent of deviation from the letter and spirit of the Act, and the
prejudice to the accused.” Commonwealth v. O'Shea, 567 A.2d 1023, 1030
(Pa. 1989) (citations omitted). Our Supreme Court approved of this “case-
by-case approach[,]” first set forth in a Superior Court case, “to the
determination of the appropriateness of exclusion of evidence allegedly
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obtained in violation of the [MPJA].”6 Id. Such an approach permits “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.”
Commonwealth v. Hobel,
275 A.3d 1049, 1058 (Pa.Super. 2022) (cleaned
up).
In considering the intrusiveness of Chief Sharp’s actions, we find
guidance from Hlubin. Rather than considering the intrusiveness of a DUI
checkpoint for an unimpaired driver, the High Court concluded that it “must
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6 The continued application of the O’Shea test was called into doubt by the
plurality decision of our Supreme Court in Commonwealth v. Hlubin, 208
A.3d 1032 (Pa. 2019). As explained by this Court:
In Commonwealth v. Hlubin, 208 A.3d 1032 (Pa. 2019)
(plurality), our Supreme Court addressed the continued validity of
the O’Shea test. Three justices were unwilling to condone its
continued application for avoiding suppression of MPJA violations.
Id. at 1049-51 (Opinion of the Court) (Donohue, J., joined by
Todd and Wecht, JJ). In contrast, three justices would have
declined addressing the continued validity of the test because it
was not raised. Id. at 1052-53 (Saylor, C.J., concurring and
dissenting, joined by Baer and Dougherty, JJ). Finally, Justice
Mundy supported the continued application of the three-factor
test. Id. at 1057 (Mundy, J., dissenting). Thus, after Hlubin, the
O’Shea test remains good law.
Commonwealth v. Hobel, 275 A.3d 1049, 1058 n.5 (Pa.Super. 2022)
(cleaned up). The High Court has not since revisited the O’Shea test.
Accordingly, like the panel in Hobel, we continue to apply it to the matter
before us.
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instead measure the level of intrusion of a stop that results in an arrest, since
only in this circumstance does the issue of possible suppression of evidence
arise.” Id. at 1048. In Hlubin, the officer initially questioned Hlubin for thirty
to forty-five seconds and then, based upon that interaction, “removed Hlubin
from her vehicle and took her to a testing area, where she was subjected to
field sobriety testing, blood testing and arrest.” Id. Our High Court
determined that such an interaction “resulted in a high level of
intrusiveness[.]” Id.
Likewise, we consider the entirety of the encounter from when Chief
Sharp stopped Appellee, to when Appellee was arrested by Sergeant Heller,
in order to determine the level of intrusiveness. As detailed supra, Chief Sharp
conducted a stop after observing a traffic violation. Upon realizing that
Appellee, a friend of Chief Sharp, was the driver, and observing a martini glass
in the vehicle, Chief Sharp called for another officer to continue the traffic stop
and investigation. That officer arrived and ultimately transported Appellee to
a hospital for blood testing and arrest based upon suspicion of DUI. As in
Hlubin, we conclude that this interaction involved a high level of intrusiveness
and thus favors suppression.
Next, we consider “the extent of deviation from the letter and spirit of
the [MPJA.]” O'Shea, 567 A.2d 1030 (cleaned up). The MPJA endeavors “to
promote public safety while maintaining police accountability to local
authority; it is not intended to erect impenetrable jurisdictional walls
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benefiting only criminals hidden in their shadows.” Commonwealth v.
Lehman, 870 A.2d 818, 820 (Pa. 2005) (cleaned up). Presently, we observe
that Frenchcreek Township had no police force of its own. Thus, through the
2006 Joint Municipal Agreement, Frenchcreek Township purported to grant
Polk Borough police the authority to enforce the laws of this Commonwealth
within Frenchcreek. It is evident from the record that Polk Borough had been
operating for over ten years as if it had authority to patrol in Frenchcreek
Township pursuant to this agreement.
Within this framework, Chief Sharp observed Appellee driving his vehicle
for one-half of a mile in the wrong direction on a public roadway. It is beyond
peradventure that Appellee’s driving presented “an immediate clear and
present danger” to other vehicles and pedestrians on the roadway. See 42
Pa.C.S. § 8953(a)(5); Hobel, 275 A.3d at 1062-63 (concluding that Hobel’s
driving presented “an immediate clear and present danger” when he swerved
back and forth across the road into the oncoming traffic lane (citation
omitted)). Furthermore, but for Frenchcreek Township’s misguided decision
to adopt the agreement by resolution instead of ordinance, Chief Sharp’s
conduct would have been authorized by the ICA and the MPJA. Under these
circumstances, we hold that Chief Sharp’s actions conformed to the spirit of
the MPJA and did not deviate far from its letter. Therefore, consideration of
this factor weighs against suppression.
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Finally, we assess the prejudice to Appellee. This factor requires us to
consider “whether the search would not have otherwise occurred or would not
have been as intrusive.” Hlubin, 208 A.3d at 1048 (cleaned up).
Unquestionably, any officer observing Appellee driving on the wrong side of
the road for a half mile would have pulled him over. Indeed, Appellee’s
attorney at oral argument conceded that any police officer who observed this
conduct, including Chief Sharp, absolutely should have stopped Appellee.
Given the facts of this case, we have no difficulty determining that any
officer conducting the stop would have followed the same, standard protocols
for processing a suspected DUI, including stopping the vehicle, asking
Appellee to perform field sobriety tests, transporting him for a blood draw if
he consented to comply with that request, and arresting him for DUI.
Accordingly, we cannot conclude that Appellee was prejudiced when he was
pulled over by a Polk Borough police officer in Frenchcreek Township. Thus,
the third factor also militates against suppression.
We note that our Supreme Court has held that “[t]he ‘official duties’ of
a police officer at times extend outside the home jurisdiction’s political
boundaries, and appropriate responses to exigencies must be allowed, as the
statute acknowledges. Authorizing expedient but limited responses is only
common sense; they save lives and property without infringement on
anyone’s rights.” Lehman, 870 A.2d at 821. In Lehman, Officer Robert
Wagner was notified of an incapacitated driver slumped over in his vehicle in
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the next jurisdiction. He immediately proceeded there to check on the
appellant’s well-being and, upon concluding that the appellant was not having
a medical emergency but was instead likely intoxicated, performed a field
sobriety test and summoned the state police since the jurisdiction where the
appellant had been stopped lacked a police force. In finding that one of the
exceptions to the MPJA applied, our Supreme Court held:
[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
activities to maintaining the status quo, including detaining the
suspect, until officers from the appropriate jurisdiction arrive.
Id. Further, the High Court observed:
Officer Wagner was not engaged in an extrajurisdictional fishing
expedition nor an attempt to expand his sphere of power. Had
appellant in fact needed assistance, Officer Wagner was in the
best position to provide it. Had appellant had a heart attack rather
than been drunk, he would urge us to permit Officer Wagner to
help him. Allowing officers to do their duty most effectively and
beneficially to the public will sometimes put them in a position to
see crimes and find drunken drivers—such would be a poor reason
to limit their ability to provide the full measure of service to the
public that is possible.
Id.
Here, it was not established that the Polk Borough police officers had a
particular routine in Frenchcreek Township related to their Polk Borough
responsibilities, but rather that they operated under the belief that they had
jurisdiction in Frenchcreek Township based upon the improperly adopted 2006
agreement. Thus, as noted, the exception set forth at § 8953(a)(5) does not
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apply. Nonetheless, we find Lehman’s reasoning instructive in considering
the practical realities of policing when confronted with an individual who may
be in medical distress, as in Lehman, or posing an extreme danger to
themselves and others by their conduct, as Appellee herein, and whether
suppression is an appropriate remedy for a technical violation of the MPJA
where the police are “not engaged in an extrajurisdictional fishing expedition
nor an attempt to expand [their] sphere of power.” Id.
In sum, we find that the case sub judice is a textbook example of Chief
Sharp acting “to uphold the rule of law in good faith [while] in technical
violation of the MPJA.” See Hobel, 275 A.3d at 1058 (cleaned up).
Accordingly, we hold that “suppression would not be an appropriate remedy
under the MPJA [in this case, as] the legislative intent of [the MPJA] is to
advance public safety and not shield criminal behavior.”
Id. at 1064 (citation
omitted). We reverse the order granting Appellee’s suppression motion and
remand for further proceedings.
Order reversed. Case remanded. Jurisdiction relinquished.
Judges Dubow, Nichols, Murray, King, and Beck join this Opinion.
Judge Sullivan files a Dissenting Opinion in which President Judge
Lazarus and Judge McLaughlin join.
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DATE: 9/25/2024
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