Com. v. Eakin, S.

J-E02001-24

                                   

  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.

DISSENTING OPINION BY SULLIVAN, J.: FILED: September 25, 2024

       The Majority thoroughly recapitulates the record and summarizes the

law governing this appeal from the order granting the pre-trial motion to

suppress filed by Steven G. Eakin (“Eakin”). It is uncontested that the traffic

stop conducted by Polk Borough Police Department Chief Edward E. Sharp, Jr.

(“Chief Sharp”) in Frenchcreek Township was not authorized by the

Intergovernmental Cooperation Act (“ICA”),1 that the Commonwealth failed to

establish that any exception to the Municipal Police Jurisdiction Act (“MPJA”)2

applied, and that the traffic stop therefore violated the MPJA. Thus, the only

issue in dispute is whether the trial court’s suppression was appropriate under

the three-part test set forth in Commonwealth v. O’Shea, 

(Pa. 1989).
____________________________________________


1 See 53 Pa.C.S.A. §§ 2301-2317.


2 See 42 Pa.C.S.A. §§ 8951-8955.
J-E02001-24




      While the Majority agrees that the traffic stop was intrusive under the

first prong of O’Shea, it holds that (1) any violation of the MPJA violated only

the letter of the MPJA, not its spirit, because of Chief Sharp’s “textbook

example” of good faith; and (2) the violation of the MPJA did not result in

prejudice, and thus reverses the trial court. I am constrained to disagree with

the Majority’s analysis of the last two O’Shea factors and, consequently,

respectfully dissent.

      This Court has provided that, where there is a violation of the MPJA,

courts must apply the three-prong O’Shea test on a case-by-case basis to

determine whether a violation of the MPJA warrants suppression of evidence:

            The factors to be considered in applying this case-by-case
      approach consist of all the circumstances of the case including [1]
      the intrusiveness of the police conduct, [2] the extent of deviation
      from the letter and spirit of the [MPJA], and [3] the prejudice to
      the accused. . . . 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.

             [This] 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.

Commonwealth v. Hobel, 

 (Pa. Super. 2022) (quoting

Commonwealth v. Henry, 

 (Pa. Super. 2008))

(internal citations omitted).

      In addition to a violation of the ICA, the Commonwealth concedes there

was an MPJA violation, but argues that suppression was not warranted

                                     -2-
J-E02001-24




because, under the O’Shea test, the stop and subsequent arrest was valid.

Commonwealth’s Brief at 15-16, 17.               Accord Maj. Op. at 8 (noting the

Commonwealth has conceded the MPJA was violated and “it is evident that

none of the exceptions apply”).

       I agree with the learned Majority that in the absence of an applicable

exception under the MPJA authorizing the traffic stop at issue, this Court is

required to apply O’Shea to determine whether suppression was the

appropriate remedy.3 However, I discern no error of law by the trial court in

granting Eakin’s suppression motion.

       The first prong of the O’Shea test concerns the intrusiveness of the

police conduct. We must consider 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.” Hlubin, 208 A.3d at 1048 (plurality). We need

not belabor this point, however, because the Majority concludes the stop was

unquestionably intrusive, and therefore militates in favor of suppression. See

Maj. Op. at 10 (applying Hlubin and concluding the stop “involved a high level

____________________________________________


3 That said, I would be remiss not to highlight that the viability of the O’ Shea

test has been called into question. A plurality of our Supreme Court expressed
doubt about the continued viability of the O’Shea test. See Commonwealth
v. Hlubin, 

 (Pa. 2019) (plurality) (superseded by
statute on other grounds). Indeed, in Hobel, this Court noted that several of
our Supreme Court justices indicated their opposition in Hlubin to the
continued application of O’Shea; however, three justices declined to address
the validity of O’Shea; and one supported its application. See Hobel, 

 n.5. Accordingly, O’Shea “remains good law.” 

                                           -3-
J-E02001-24




of intrusiveness”). Here, Chief Sharp’s stop of Eakin resulted in a subsequent

call to another officer, i.e., Sergeant Heller, another Polk borough officer,

who, after arriving, transported Eakin to the hospital for blood testing and a

subsequent arrest. As in Hlubin, the level of intrusiveness resulting from this

stop was high. Accordingly, the first prong of the O’Shea test favors Eakin

and suppression. Accord Maj. Op. at 1 (similarly concluding the first prong

favors suppression).

       The second prong of the O’Shea test requires consideration of “the

extent of deviation from the letter and spirit of the MPJA.” Hlubin, 

 (plurality).      Our Supreme Court has observed that when officers

regularly leave their primary jurisdiction to police in other jurisdictions,

“jurisdictional lines are not maintained but rather are obliterated. Moreover

. . . where this extraterritorial activity has no advance legislative approval or

legal oversight, there is plainly no accountability to local authority.”     

Putting the validity of O’Shea aside, in Hlubin, the majority of our Supreme

Court held that the MPJA is specifically limited to six enumerated exceptions

when an officer exercises police power outside of his primary jurisdiction. 

 (majority) (emphasis in original).4 The Court held, “[b]ased upon the
____________________________________________


4 Here, the Majority relies heavily on Commonwealth v. Lehman, 

 (Pa. 2005). Lehman, however, is completely distinguishable from
this case. First and foremost, in Lehman, the Court’s analysis was based
solely on the Commonwealth’s argument that exception (a)(5) of the MPJA
(Footnote Continued Next Page)


                                           -4-
J-E02001-24




clear language of these provisions of the MPJA and our conclusion that no

exception . . . applied here,” suppression was the appropriate remedy. 

(emphasis added).5

       Here, as in Hlubin, the MPJA’s six exceptions did not apply for purposes

of our review. Yet the Majority, in applying and analyzing the second O’Shea

factor—applied only where the MPJA is violated—cites to section (a)(5) of the

MPJA in its analysis.      It is beyond cavil that where there is extraterritorial

policing without an ICA in place, this Court looks to the MPJA to determine

whether an exception applies. If an exception to the MPJA does not apply,

then this Court proceeds to an O’Shea analysis.            The learned Majority

concedes no MPJA exceptions apply, applies O’Shea, and then frames the

analysis based on an MPJA exception that the Commonwealth never asserted.

See Maj. Op. at 11. This Court should acknowledge that no MPJA exceptions

apply, and, therefore, notwithstanding Chief Sharp’s good faith belief, Polk


____________________________________________


applied. Here, an MPJA violation was conceded, and no exception thereto was
argued or analyzed. Maj. Op. at 8. Also, nowhere in the Lehman opinion is
there a reliance, application or even mention of the O’Shea test; the opinion
is conspicuously devoid of any mention of O’Shea. Here, the application of
O’Shea is the sole issue. Finally, in Lehman there is no argument made
regarding the existence of an ICA agreement between the departments, an
issue that features prominently in this matter.

5 Our Supreme Court has recently reiterated that it is this Court’s “main
function” to “maintain and effectuate the decisional law of this Court as
faithfully as possible.” N.W.M. Through J.M. v. Langenbach, 

,
22 (Pa. 2024) (internal quotations and footnote omitted).

                                           -5-
J-E02001-24




Police Department’s routine provision of police services outside of its primary

jurisdiction, i.e., in Frenchcreek Township, was unauthorized at the time under

the ICA, and without an applicable MPJA exception.

       This is of course not to say that every MPJA violation requires this Court

to conclude that the second prong of the O’Shea test militates in favor of

suppression.     See, e.g., Commonwealth v. Kitcey, 

 (Pa.

Super. 2023) (unpublished memorandum at *7) (concluding that while the

MPJA authorized the police conduct at issue, even if there were no applicable

MPJA exceptions, the second O’Shea factor would militate against suppression

because the officer “obtained probable cause in his jurisdiction, and pursued

[the defendant] based on . . . evidence [obtained in his primary jurisdiction];

and he therefore did not travel outside of his jurisdiction to acquire additional

evidence”).6     See also Hobel, 

 (in which this Court

concluded that the MPJA’s (a)(5) exception applied, but even if it did not, the

second O’Shea factor did not favor suppression because the officer while in

his primary jurisdiction observed a vehicle fitting a BOLO description and

followed it into a neighboring jurisdiction, after which, on his return to his

primary jurisdiction, he observed the defendant’s vehicle back out of an

abandoned road, drive through a stop sign, and accelerate away while

swerving back and forth across the road). In contrast, here, Chief Sharp was
____________________________________________


6 See Pa.R.A.P. 126(b) (permitting citation to non-precedential decisions of

this Court filed after May 1, 2019)

                                           -6-
J-E02001-24




not in his primary jurisdiction nor performing functions related to his official

business in his primary jurisdiction when grounds to stop Eakin arose.

Therefore, the second O’Shea factor favors Eakin. See Hlubin, 

.

        The final O’Shea factor concerns the prejudice to the accused, i.e.,

consideration of “whether the search would not have otherwise occurred or

would not have been as intrusive” absent the violation. 

 (quoting O’Shea,

). Where the record contains no evidence upon which this

Court can determine whether the stop would have occurred at all absent the

extraterritorial policing, this factor weighs in favor of suppression.      See

Hlubin, 

. Even in Hobel, the suppression court concluded,

and this Court found its analysis persuasive that, assuming arguendo an MPJA

violation, the third factor weighed in favor of Hobel where “[t]here is no

evidence this search was inevitable, and [Hobel] may have gone for a

longer period without discovery had [the officer] not been present

outside his primary jurisdiction.”             

 (emphasis added;

some brackets in original).7         But cf. Kitcey, 

 (unpublished

memorandum at *7) (concluding the final O’Shea factor weighed against

____________________________________________


7 In Hobel, a second officer joined a dragnet and “was not the first or sole

pursuer,” and other police departments were “monitoring the status of the
pursuit,” and, therefore, regarding that specific officer, the third O’Shea
factor weighed against suppression because, based on the evidence of record,
Hobel would have been stopped by other departments involved in the pursuit.

                                           -7-
J-E02001-24




suppression because the officer, who witnessed a traffic violation in his

primary jurisdiction, “called for backup and informed dispatch” of the

extraterritorial stop as he activated his lights, and right after he conducted

the stop, an officer from the primary jurisdiction arrived).

      Here, Chief Sharp testified that he stopped Eakin following his

observation of Eakin traveling for a half mile on the wrong side of the road.

See N.T., 8/27/21, at 45. The record is devoid of evidence that, absent Chief

Sharp’s unauthorized presence, this stop would have occurred, and,

accordingly, no indication that Eakin would have been stopped.        The third

O’Shea prong thus favors Eakin. See Hlubin, 

; Hobel,

; Kitcey, 

 (unpublished memorandum at *7).

While the Majority speculates that any officer conducting the stop would have

followed the same procedure as Chief Sharp, the Majority overlooks the fact

that there is no evidence of record that a legal stop was likely to occur absent

Chief Sharp’s unauthorized stop.     See Maj. Op. at 12.       The only officers

involved in this stop were from Polk Borough, and there was no testimony that

a citizen/civilian witnessed the driving at issue. Speculation about the

procedures of a hypothetical stop, without any additional evidence that the

stop would have even likely occurred or been similarly intrusive shows ample

prejudice under the third O’Shea factor and favors Eakin.




                                     -8-
J-E02001-24




      Accordingly, following application of O’Shea, I would conclude that all

three factors militate in favor of suppression, and, thus, that the trial court

committed no error in suppressing the evidence derived from the stop.

      For the foregoing reasons, I respectfully dissent.

      President Judge Lazarus and Judge McLaughlin join this dissenting

opinion.




                                     -9-