Opinion
No. 1347 EDA 2003.
Filed: July 15, 2004.
Appeal from the Order April 3, 2003, In the Court of Common Pleas of CHESTER County, CRIMINAL, No. 5511-02.
Before: TODD, BOWES, and CAVANAUGH, JJ.
¶ 1 This is a Commonwealth appeal from the lower court's granting a defense motion to suppress. Appellee was charged with driving under the influence of alcohol and various other driving and traffic offenses. She filed a pre-trial motion to suppress, which was granted as to the observations, tests, and evidence obtained following the stop and arrest of appellee. We affirm.
The Commonwealth has certified that the order granting suppression of evidence substantially handicaps the prosecution of this case, and, therefore, the interlocutory appeal is properly before us. Commonwealth v. Dugger, 486 A.2d 382 (Pa. 1985).
¶ 2 The facts, as found by the lower court and as supported by the record, are as follows:
On August 16, 2002, at approximately 12:40 a.m., Officer Michelle Major was off-duty and driving eastbound on Yellow Springs Road approaching Indian Run Road, in Tredyffrin Township [Chester County]. She approached a silver or gray Volkswagen Jetta in the eastbound lane, going at a very slow rate of speed. When the officer neared the vehicle, it accelerated abruptly to 40 or 45 miles per hour, and went the speed limit. There were no cars between the two vehicles, and no other cars or pedestrians in the area. The officer stayed 8 to 10 vehicle lengths behind the Defendant.
Thereafter, the officer observed the vehicle gradually swerve or drift to the right, where it almost struck a telephone pole on the shoulder of the road. Yellow Springs Road is very narrow and very winding, with no fog line. The officer continued to follow the vehicle and observed that it was not staying in its lane of travel. It went across the double yellow line and swerved back to the right side of the roadway. It crossed the double yellow line more than once, and swerved back over to the right side of the roadway.
Within a minute of observing the vehicle, Officer Major called police county dispatch to report the incident. She asked them to get a police officer to respond to her location because she was following an erratic driver. She did not recall her exact wording. In her testimony she made no mention of possible intoxication.
Officer Major continued to follow the vehicle and advised dispatch of their location as it changed. The vehicle obeyed all posted stop signs, and traveled within the speed limit. The vehicle then turned right from Cedar Hollow Road into a private lot, and the officer parked her car on Cedar Hollow Road. Officer Major knew that there was one person in the car she followed but did not know whether it was a male or female.
During the five minutes she followed the vehicle, it "did not drive in a single lane and drifted over to the left and right side of the road continually." It failed to drive in a straight path of travel. She stated, "At no time did the vehicle maintain a straight path. It would either go to the left side of the road or the right side of the road or swerving within the lane."
A couple of times during her contact with dispatch, the phone disconnected, but Officer Major called right back.
After stopping on Cedar Hollow Road, Officer Major waited for the on-duty police officer to arrive. When the marked police vehicle approached, she did not speak to the other officer, rather, she signaled out her window that the Jetta she was following was now parked there in the lot. Officer Carsello called her at home later that night.
Officer Michael Carsello, a police officer for Tredyffrin Township Police Department, testified on January 28, 2003 and on February 27, 2003. He was working on August 16, 2002. On that date, at 12:44 a.m., while assisting a fellow officer on a traffic stop, he was dispatched for this matter.
Dispatch informed him that off-duty Officer Michelle Major was following an erratic driver. Dispatch gave him a description of the vehicle as a silver Volkswagen.
Following the dispatch directions, Officer Carsello traveled on Lancaster Avenue to get to North Valley Road, then proceeded to West Central Avenue heading toward Industrial Boulevard.
Prior to reaching Industrial Boulevard, Officer Carsello noticed Officer Major in her personal vehicle on West Central Avenue, pointing directly into the parking lot where the silver Volkswagen Jetta driven by Defendant was drifting before it came to a stop. The Defendant's vehicle's lights were on, the engine was running, and it was in drive. There were no other cars in the parking lot.
The parking lot is located in Willistown Township. Officer Carsello had not personally observed Defendant operate the vehicle in Tredyffrin Township. Officer Carsello estimated that they were in Willistown Township and out of Tredyffrin Township by a couple of hundred feet, but he did not know where the exact dividing line was located. Defendant testified that the boundary between the townships was six-tenths of a mile from the location where she stopped.
Officer Carsello approached Defendant, who was driving the Jetta. He requested documentation such as her driver's license and insurance card. The officer noticed that Defendant had a strong odor of an alcoholic beverage on her breath, had slurred speech and was rambling on about a few things.
Officer Carsello asked Defendant how much she had to drink that evening and Defendant told him that she had five or six drinks. The officer told Defendant that he was going to ask her to exit the vehicle to issue a battery of standard field sobriety tests to make sure Defendant was able to drive and Defendant exited her vehicle. The officer administered field sobriety tests, including the one-leg stand and the walk and turn, which Defendant failed. Defendant was then placed under arrest for driving under the influence of alcohol.
Lower court opinion, 4/3/03, at 2-5 (citations to record and footnotes omitted).
¶ 3 The lower court concluded as a matter of law that Officer Major would have had probable cause to stop appellee, but that since Officer Carsello did not observe the vehicle being driven by appellee and since he was not acting within his own jurisdiction, the stop was not supported by probable cause. Since Officer Carsello was only directed to pursue an "erratic driver," he had insufficient information upon which to base a determination regarding probable cause to believe that the operator was in violation of the Motor Vehicle Code.
¶ 4 We disagree with the lower court that Officer Carsello would have had to have personally observed appellee engage in behavior supporting the determination of probable cause. Officer Carsello was entitled to rely upon the radio dispatch in making the stop, as long as Officer Major provided the requisite factual basis for the stop at the suppression hearing. However, because we also disagree with the lower court that Officer Major's testimony established the existence of probable cause to stop appellee's vehicle, we affirm the order, albeit on a basis other than that relied upon by the lower court. (An appellate court may affirm on a basis different from the trial court. Commonwealth v. Davis, 816 A.2d 1129, 1136 n. 4 (Pa.Super. 2003)).
¶ 5 The Commonwealth phrases the issue raised on appeal as follows:
Whether the trial court erred in suppressing the evidence based upon an alleged violation of the statewide Municipal Police Jurisdiction Act, where the trial court incorrectly held that the investigating officer could not rely on a radio bulletin concerning a vehicle, where evidence was offered and credited at the suppression hearing, which established that the radio bulletin was based on articulable facts, which support probable cause to believe that the Vehicle Code had been violated?
¶ 6 The well-established standard of review of an order disposing of a motion to suppress is as follows:
When the evidence supports the factual findings of the suppression court, we may reverse only if there is an error in the legal conclusions drawn from those factual findings. As a reviewing court, we are therefore not bound by the legal conclusions of the suppression court and must reverse that court's determination if the conclusions are in error or the law is misapplied. Commonwealth v. Ayala, 791 A.2d 1202, 1207 (Pa.Super. 2002).
Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa.Super. 2003).
¶ 7 While the police must have probable cause to believe that a vehicle or its driver is in violation of a provision of the Motor Vehicle Code to justify a traffic stop, ( See Commonwealth v. Gleason, 785 A.2d 983, 989 (Pa. 2001); Commonwealth v. Battaglia, 802 A.2d 652, 656 (Pa.Super. 2002), appeal denied, 841 A.2d 528 (Pa. 2003)), where more than one officer is involved in a vehicle stop, the responding officer need not personally have probable cause to effectuate the stop. Commonwealth v. Stevenson, 832 A.2d 1123, 1128 (Pa.Super. 2003) (quoting Commonwealth v. Queen, 639 A.2d 443, 445 (Pa. 1994), ". . . a stop and frisk may be supported by a police radio bulletin only if evidence is offered at the suppression hearing establishing the articulable facts which support the reasonable suspicion.") As quoted by this court,
An officer responding to a police radio bulletin is justified in conducting a Terry stop, even if that officer is not in possession of enough facts to meet the reasonable suspicion requirement, provided the officer who requests the first officer to make the stop has the requisite facts at his or her disposal.
Commonwealth v. Albert, 767 A.2d 549, 555 (Pa.Super. 2001) (quoting Commonwealth v. Jackson, 698 A.2d 571, 573-574 (Pa. 1997) and citing Queen, supra, at 445-446 n. 4.)
¶ 8 There is no argument made by the Commonwealth that Officer Carsello independently possessed sufficient facts that would support a conclusion on his part that there existed probable cause to stop appellee. In order for the stop to have been legal, the radio bulletin, dispatched pursuant to information provided by Officer Major and to which Officer Carsello responded, must have been based upon probable cause.
¶ 9 The lower court concluded that Officer Major had probable cause to believe that appellee had violated 75 Pa.C.S.A. § 3309(1). This section requires that an automobile be driven "as nearly as practicable" within a single lane. However, where a driver's failure to remain in a lane at all times does not create a safety hazard, as was the case in Gleason, there exists insufficient evidence to support a violation of section 3309(1). Here, the Commonwealth did not show that appellee's driving behavior created a safety hazard. We are in disagreement with the lower court that there was a sufficient showing of probable cause for Officer Major to stop appellee's vehicle.
In Gleason, the Supreme Court quoted from the memorandum opinion of this Court which reversed the trial court's grant of a suppression motion, wherein we stated: "We cannot agree . . . that [Appellant's] drifting onto the berm of the highway two or three times within such a short distance failed to justify the stop in the within case. Indeed, [Appellant's] repeated inability to remain on the highway with an intersection approaching reasonably prompted Officer Rosato to "check on the operator for his erratic driving[;] [h]is condition, whether he had been drinking or possibly falling asleep." 785 A.2d at 986. The Supreme Court rejected this reasoning and required a showing of probable cause of violation of the Vehicle Code. We regard the Supreme Court's holding in Gleason as indicating a sea change in its treatment of late night/early morning car stops in which police officers believe the drivers to be under the influence of alcohol. This case severely limits the ability of police officers to act on hunches based upon observations of "erratic driving" which fall short of probable cause to believe that the Vehicle Code has been violated. In sum, we believe that the seminal case of Gleason was intended to put an end to vague descriptions of undisciplined driving as a basis for probable casue in these cases which typically involve trailing a lone motorist during late night or early morning hours when circumstances carry a high risk of pretextual descriptions and there is no evidence of a specific concrete traffic violation. We note that in the instant matter, the suspect obeyed all traffic signals and did not travel at an excessive rate of speed. We also note that the "almost struck a telephone pole" recitation is really no different from the Superior Court's finding in Gleason (rejected by the Supreme Court as inadequate probable cause), i.e., that the car traveled three times on the berm adjacent to the highway could almost certainly have been described as the car "almost" contacting any fixed object adjacent to the berm.
¶ 10 As noted in Battaglia, supra at 656 n. 8, erratic driving is not per se a violation of the Vehicle Code. We also concluded that, ". . . there is no basis for `profiling' a suspected drunk driver merely on the basis of observing undisciplined operation of a vehicle which does not form the basis for a conclusion that there has been a violation of the Vehicle Code." Id., at 657.
¶ 11 Since its decision in Gleason, the Supreme Court has reversed several other decisions of this Court which found sufficient basis to stop a vehicle existed. These cases are as follows:
1. Commonwealth v. Baumgardner, 796 A.2d 965 (Pa. 2002). Per curiam reversal, on the basis of Gleason, of Superior Court where motorist weaved from left to right in his lane of travel for a distance of two miles.
2. Commonwealth v. Roudybush, 790 A.2d 313 (Pa. 2002). Per curiam reversal, citing Gleason, of Superior Court where motorist 1) crossed fog line three times and straddled fog line two times; 2) crossed center line twice and straddled center line once; 3) weaved within lane of travel for a distance of ½ mile.
3. Commonwealth v. Shick, 803 A.2d 1174 (Pa. 2002). Per curiam reversal and remand for consideration of Gleason and Roudybush where motorist 1) made a wide turn; 2) weaved within lane of travel for a distance of 3/10 of a mile; 3) crossed center line three or more times; 4) swerved back into own lane of travel after crossing center line.
4. Commonwealth v. Vokes, 803 A.2d 1175 (Pa. 2002). Per curiam reversal and remand for consideration of Gleason and Roudybush where motorist
1) crossed center line by 1½ feet and straddled it for several feet before returning to lane of travel; and
2) crossed fog line by 1 foot and traveled several feet on berm.
The facts of these cases have been determined from examination of superior court records.
¶ 12 We recognize there exists disparate treatment as to the precedential effect of per curiam reversals of decisions of this Court by the Supreme Court. Compare Commonwealth v. Fowler, 703 A.2d 1027, 1031 (Pa. 1997) (opinion announcing the judgment of the court); Commonwealth v. Dunlap, 2004 PA Super 78 (March 25, 2004) ( en banc); Commonwealth v. Nobalez, 805 A.2d 598 (Pa.Super. 2002), appeal denied, 835 A.2d 709 (Pa. 2003). In Fowler, Madame Justice Newman, in an opinion joined by two of the other five participating justices, wrote:
This Court also handed down its decision in Commonwealth v. Barone, 520 Pa. 118, 552 A.2d 1048 (1989), before Fowler's trial. Barone is especially significant because it addressed the question of intercepting a conversation in a defendant's home. This Court issued a concise per curiam Order reversing the Superior Court's decision and remanding the case to the Superior Court to address remaining issues. The per curiam Order in Barone expressly stated that the reversal was based on this Court's decision in Blystone. The Superior Court's initial decision was supported by a Memorandum Opinion, which has no precedential value pursuant to Section 65.37 of the Internal Operating Procedures of the Superior Court. However, this Court's Order reversing the Superior Court's decision in Barone I, as all decisions of this Court, carried the weight of binding precedent. Commonwealth v. Gretz, 520 Pa. 324, 554 A.2d 19 (1989) (per curiam) (even if a panel decision of the Superior Court is unpublished, this Court's per curiam affirmance constitutes a binding decision of precedential authority on the question presented to and accepted for review by this Court). But see Commonwealth v. Tilghman, 543 Pa. 578, 673 A.2d 898 (1996) (clarifying Gretz in cases in which this Court issues a per curiam affirmance without explaining the reason therefor).
Id., at 1031 (boldface emphasis supplied; footnote omitted).
¶ 13 Thus a plurality of the Supreme Court in Fowler stated that a per curiam reversal by the Supreme Court of a decision by this Court is precedential authority. However, in Dunlap and Nobalez, this Court interpreted Tilghman to require a conclusion that per curiam reversals by the Supreme Court of decisions by this Court do not constitute precendential authority. Regardless of the ultimate correctness of either position and assuming that Dunlap and Nobalez are binding authority, we find that the four post- Gleason reversals by the Supreme Court are nonetheless instructive in resolution of the instant case.
Despite our explicit recognition of the limited-authority, non-precedential status of the Supreme Court's reversals in Baumgardner, Roudybush, Shick, and Vokes, the dissent persists in characterizing our analysis of them as an implication that these decisions have precendential value. It is submitted that whether these cases be considered precedential or merely instructive is inconsequential. It should be beyond cavil that we cannot ignore repeated reversals by our high court citing as authority a seminal case, i.e., Gleason.
¶ 14 Therefore, with the benefit of this guidance from the Supreme Court, we find that the facts, as testified to by Officer Major at the suppression hearing, do not support a conclusion that there existed probable cause for the vehicle stop. The facts upon which Officer Major relied were
1) drifting to the right so as to almost strike a telephone pole;
2) crossing center line more than once;
3) drifting from left side to right side of road; and
4) swerving within lane of travel/not driving in straight path.
Appellee never exceeded the speed limit nor drove slow (other than the initial observation). She obeyed all stop signs. There was no other traffic on the roads during the five minutes Officer Major followed appellee.
¶ 15 The Commonwealth has failed to show that Officer Major's observations constituted probable cause to believe that appellee was in violation of the Motor Vehicle Code, specifically 75 Pa.C.S.A. § 3309(1), Driving on Roadways Laned for Traffic. The Commonwealth produced no evidence that appellee's driving created a safety hazard, within the meaning of the statute as interpreted by the supreme court in the above-discussed cases.
¶ 16 Based upon our determination that there was no probable cause to stop appellee, there is no need to address the Commonwealth's alternative argument regarding the Municipal Police Jurisdiction Act.
¶ 17 We find no merit to the Commonwealth's assertion that appellee was not subject to a stop. The Supreme Court has provided the following guidance for the evaluation of police-citizen interactions:
Fourth Amendment jurisprudence has led to the development of three categories of interactions between citizens and the police. The first of these is a "mere encounter" (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or to respond. The second, an "investigative detention" must be supported by a reasonable suspicion; it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. Finally, an arrest or "custodial detention" must be supported by probable cause.
Commonwealth v. Ellis, 662 A.2d 1043, 1047 (Pa. 1995) (quoted in Commonwealth v. Reid, 811 A.2d 530, 544-545 (Pa. 2002)).
¶ 18 As further explained regarding the legality of a seizure:
Indeed, the protections provided by the Fourth Amendment for a seizure, i.e., an investigative or custodial detention, are not implicated unless a person's movement has been constrained by physical force or a show of authority. California v. Hodari D., 499 U.S. 621, 626, 113 L.Ed.2d 690, 111 S.Ct. 1547 (1991); Strickler, 757 A.2d at 889-90; Commonwealth v. Lewis, 535 Pa. 501, 636 A.2d 619, 622-23 (Pa. 1994). In distinguishing a mere encounter from a seizure, a court must decide whether based on all the circumstances surrounding the interaction between the police and the individual in question, a reasonable person would have believed that he was free to decline the police's requests and terminate the interaction with the police. United States v. Mendenhall, 446 U.S. 544, 554, 64 L.Ed.2d 497, 100 S.Ct. 1870 (1980).
Reid, supra, at 545.
¶ 19 The following factors are relevant in an assessment of whether an interaction between the police and the defendant would cause a reasonable person to believe that he was either free or not free to terminate the interaction: the existence and nature of any prior seizure; whether there was a clear and expressed endpoint to any such prior detention; the character of police presence and conduct in the encounter under review (for example — the number of officers, whether they were uniformed, whether police isolated the subjects, physically touched them or directed their movement, the content or manner of interrogatories or statements, and "excesses" factors stressed by the United States Supreme Court); geographic, temporal and environmental elements associated with the encounter; and the presence or absence of express advice that the citizen-subject was free to decline the request for consent to search.
Commonwealth v. Freeman, 757 A.2d 903, 907 (Pa. 2000) (quoted in Reid, supra, at 545 n. 27).
¶ 20 Upon approaching appellee as she sat in her car, Officer Carsello immediately requested her insurance card and driver's license. A reasonable person would not believe that she was free to leave the interaction where a uniformed officer approaches her in a deserted parking lot in the early morning hours and requests legal documents. In addition, Officer Carsello testified that his purpose in listening to the radio dispatches was so he could "catch up" to Officer Major and appellee and "initiate the vehicle stop."
¶ 21 Order affirmed.
¶ 22 Judge Bowes files a dissenting opinion.
¶ 1 As I disagree with the majority's determination that Officer Major did not have probable cause to stop Appellee, I respectfully dissent.
¶ 2 Officer Major testified that while she was following Appellee's Volkswagen Jetta in the eastbound lane of Yellow Springs Road, which Officer Major described as a narrow, winding two-lane road, the Jetta almost struck a telephone pole, crossed the double yellow center line multiple times, and continually weaved in and out of the eastbound lane. Based on these observations, Officer Major telephoned Chester County authorities and reported the incident, prompting Tredyffrin Township Police Officer Michael Carsello to intercept the Jetta in a parking lot. Officer Carsello subsequently administered two field sobriety tests, and Appellee failed both of them.
¶ 3 In affirming the suppression court, the majority concludes that "the Commonwealth did not show that appellee's driving behavior created a safety hazard." Majority opinion at 7. I disagree. As noted supra, Appellee's vehicle nearly collided with a telephone pole, crossed the double yellow line into the oncoming lane of traffic more than once, and continually drifted outside the eastbound lane to the left and to the right.
¶ 4 In my view, these facts support a finding of probable cause under Commonwealth v. Slonaker, 795 A.2d 397 (Pa.Super. 2002), appeal denied, 571 Pa. 706, 812 A.2d 1229 (2002). In Slonaker, we held that police had probable cause to stop the defendant's sedan based on testimony that the vehicle crossed the fog line three times, repeatedly drove on the double yellow center line, and continuously wove from side to side within its lane of travel while accelerating and decelerating. In light of Slonaker, I believe the majority's disposition is in error; I would hold that Appellee's actions demonstrated a threat to her safety and thus, gave rise to a violation of 75 Pa.C.S.A. § 3309(1). Compare Commonwealth v. Gleason, 567 Pa. 111, 785 A.2d 983 (2001) (police lacked probable cause to stop vehicle that briefly crossed fog line two or three times over quarter-mile stretch of empty roadway).
¶ 5 I also take issue with the majority's reliance on non-authoritative Superior Court decisions that were reversed by our Supreme Court pursuant to Gleason, supra. As we recently observed in Schaaf v. Kaufman, 2004 PA Super 129, 13-14 (citations omitted):
Our Supreme Court frequently enters per curiam orders affirming or reversing the courts below. However, those orders lack anything beyond law-of-the-case effect. . . . Those orders decided cases, and although they did not declare law binding in other related cases, they fall within the common law model as cases decided by adversarial procedures and following previous decisions.
¶ 6 I find the majority's reliance on unpublished memorandum decisions problematic because it implies that those decisions have precedential value, and they clearly do not. Moreover, the cases cited by the majority are readily distinguishable from the case at bar since none of those cases involved a motorist who nearly collided with a roadside object, which is a key factor herein. See Commonwealth v. Baumgardner, 767 A.2d 1065 (Pa.Super. 2001) (defendant's vehicle wove from side-to-side within lane of travel for approximately two miles); Commonwealth v. Roudybush, 766 A.2d 891 (Pa.Super. 2000) (unpublished memorandum) (defendant's vehicle crossed fog line three times, straddled broken center line twice, and wove inside lane of travel over one-half mile stretch of empty roadway); Commonwealth v. Shick, 778 A.2d 738 (Pa.Super. 2001) (unpublished memorandum) (defendant made wide right turn, then wove within lane of travel and crossed broken center line approximately three times); Commonwealth v. Vokes, 788 A.2d 1034 (Pa.Super. 2001) (unpublished memorandum) (defendant's vehicle straddled double yellow center line for several feet, then crossed over fog line and traveled several feet on berm).
¶ 7 There is a secondary question that also must be addressed. Officer Carsello is a Tredyffrin Township Police Officer but admitted that Appellee stopped her car in a parking lot located in Willistown Township. Officer Carsello stated that the parking lot was "a couple hundred feet" over the border. N.T. Suppression Hearing, 1/28/03, at 36. The Commonwealth argues that Officer Carsello properly acted outside his jurisdiction under the Municipal Police Jurisdiction Act ("MPJA"), 42 Pa.C.S.A. § 8953(a)(2):
§ 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 performing those functions within the territorial limits of his primary jurisdiction in the following case
. . . .
(2) Where the officer is in hot pursuit of any person for any offense which was committed, or which he has probable cause to believe was committed, within his primary jurisdiction and for which offense the officer continues in fresh pursuit of the person after the commission of the offense.
¶ 8 In the present case, it was established that when Officer Carsello entered Willistown Township, he had been informed that Appellee had engaged in erratic driving while in Tredyffrin Township. N.T. Suppression Hearing, 1/28/03, at 26-28. Officer Major had observed Appellee almost strike a telephone pole and cross to the left into the oncoming lane of traffic continually. When Officer Carsello entered the parking lot, Officer Major, who was an off-duty Tredyffrin Township police officer and who actually observed Appellee's driving erratic, pointed at Appellee's car. Thus, Officer Carsello was in pursuit of Appellee when he had probable cause to believe she had committed an infraction of the Motor Vehicle Code in his jurisdiction. 75 Pa.C.S.A. § 3301 ("a vehicle shall be driven upon the right half of the roadway"); Cf. Gleason, supra (Commonwealth presented no evidence that defendant drove on left half of roadway).
The suppression court concluded that the behavior observed by Officer Major could not be used to support Officer Carsello's actions. However, it is established that the observations of all police officers involved in an incident are used to establish the existence of probable cause, even when the specific facts supporting probable case gleaned by the observing officer are not conveyed to the officer conducting the interdiction with the defendant. United States v. Hensley, 469 U.S. 221 (1985); Commonwealth v. Kenney, 449 Pa. 562, 297 A.2d 794 (1972).
¶ 9 Even if a violation of the MPJA occurred, I do not believe that suppression is an appropriate remedy in this case. See Commonwealth v. McPeak, 708 A.2d 1263 (Pa.Super. 1998). In Commonwealth v. O'Shea, 523 Pa. 384, 399-401, 567 A.2d 1023, 1030 (1990) (footnote and citations omitted), our Supreme Court concluded that police had not violated the MPJA but noted that even if there had been a violation, it would not have warranted suppression of the evidence:
Additionally, we agree with the suppression court's alternative reason for denying suppression, i.e., that even assuming, arguendo, that there had been a violation of [the MPJA], exclusion of evidence thereby obtained would not be required in this case. In Commonwealth v. Mason, 507 Pa. 396, 490 A.2d 421 (1985), we held that suppression of evidence was an inappropriate remedy for a violation of the Rules of Criminal Procedure relating to the issuance and execution of a search warrant outside of a police officer's primary jurisdiction where said violation did not implicate fundamental, constitutional concerns, was not conducted in bad faith or did not substantially prejudice the accused in the sense that the search would not otherwise have occurred or would not have been as intrusive. Automatic exclusion of evidence obtained by searches accompanied by relatively minor infractions of the rules of criminal procedure would be a remedy out of all proportion to the violation, or to the benefits gained to the end of obtaining justice while preserving individual liberties.
The Superior Court has recognized that, under Mason, suppression of evidence may or may not be the appropriate remedy for a violation of section 8953 of the Act, 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. Compare Commonwealth v. Saul, 499 A.2d 358 (Pa.Super. 1985); Commonwealth v. Peppers, 515 A.2d 971 (Pa.Super. 1986); Commonwealth v. Sestina, 546 A.2d 109 (Pa.Super. 1988): with Commonwealth v. Merchant, 560 A.2d 795 (Pa.Super. 1989); Commonwealth v. Fiume, 436 A.2d 1001 (Pa.Super. 1981); Commonwealth v. Roberts, 514 A.2d 626 (Pa.Super. 1986). We approve of this case-by-case approach to the determination of the appropriateness of exclusion of evidence allegedly obtained in violation of the Act. Accordingly, we affirm the suppression court's alternative ruling that exclusion of the challenged evidence would not be warranted in this case even if the search was considered to be "illegal" under section 8953.
¶ 10 The purpose of the MPJA is to proscribe investigatory, extraterritorial forays used to acquire additional evidence where probable cause does not yet exist. Commonwealth v. Laird, 797 A.2d 995 (Pa.Super. 2002).
The Statutory Construction Act of 1972 provides that the MPJA is not within the class of statutes to be strictly construed; rather, courts must construe the MPJA liberally to promote the interests of justice. 1 Pa.C.S.A. § 1928(b), (c); Commonwealth v. Fetsick, 572 A.2d 793 (Pa.Super. 1990).
One of the principal purposes of the MPJA is to promote public safety while placing a general limitation on extraterritorial police patrols. Commonwealth v. Merchant, 528 Pa. 161, 595 A.2d 1135, 1138 (1991).
Id. at 998.
¶ 11 In the instant case, Officer Carsello did not enter Willistown Township in order to conduct an extraterritorial patrol or to obtain further facts to support a probable cause determination. In my view, Officer Carsello's actions do not constitute the type of behavior that the legislature sought to prohibit through the enactment of the MPJA, and therefore, suppression would not be an appropriate remedy in this case.
¶ 12 For the reasons stated herein, I would reverse the order in question.