Com. v. Cogar, R.

• Court: Superior Court of Pennsylvania
• Decided: November 15, 2019
• Docket: 176 WDA 2019
• Status: Unpublished

Opinion

J-A26027-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RODNEY DALE COGAR : : Appellant : No. 176 WDA 2019

Appeal from the Judgment of Sentence Entered January 2, 2019 In the Court of Common Pleas of Greene County Criminal Division at No(s): CP-30-CR-0000301-2017

BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.

MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 15, 2019

Rodney Dale Cogar appeals from the judgment of sentence, imposed in

the Court of Common Pleas of Greene County, after the trial court convicted

him of driving while operating privileges are suspended and other summary

offenses. Cogar challenges the denial of his suppression motion, arguing the

initial investigating officer lacked jurisdiction under the Municipal Police

Jurisdiction Act.1 Upon careful review, we affirm.

The following facts have been gleaned from the trial court’s findings of

fact placed on the record at the conclusion of the suppression hearing and

from the record as a whole. Waynesburg Borough Police Officer Marcus Simms

was on patrol on the afternoon of August 11, 2017. Waynesburg Borough

(“Borough”) is approximately one square mile in area and is surrounded by

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1 42 Pa.C.S.A. §§ 8951-8955. J-A26027-19

Franklin Township (“Township”). The Borough has its own police force. The

Township does not maintain a police force, and relies upon the Pennsylvania

State Police for law enforcement. The Township is not within the jurisdiction

of the Borough’s police force.

While on patrol, Officer Simms received a 911 dispatch from the Greene

County Emergency Management Center2 instructing him to be on the lookout

for a silver and red Chevrolet pickup truck being operated erratically on North

Porter Street. A portion of North Porter Street is located within the Borough.

Officer Simms responded to the call and, ultimately, observed a truck fitting

the description of the 911 dispatch parked on a “wide turnaround pulloff area”

on Woodland Avenue, located entirely in Franklin Township. N.T. Suppression

Hearing (Findings of Fact), 4/9/18, at 58. Officer Simms then turned his

vehicle around to return to the area where the pickup was parked, at which

time the driver of the pickup drove away in the opposite direction from Officer

Simms’ vehicle. Officer Simms again reversed course and followed the pickup

truck to Washington Greene Health Systems Hospital (“Hospital”). While

following the truck, Officer Simms observed driving conduct that “would be

sufficient probable cause or reasonable suspicion to initiate a traffic stop” if

Officer Sims were within his primary jurisdiction. Id. at 59. All of this conduct

occurred within the Township.

2 The Greene County Emergency Management Center dispatches the Borough’s police force, but does not perform that function for the Pennsylvania State Police.

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When Officer Simms arrived at the Hospital parking lot, he detained

Cogar pending the arrival of the state police. Pennsylvania State Trooper

Lucas Borkowski, who had subsequently received radio notice that the erratic

driver had been detained at the Hospital by Officer Simms, arrived one to two

minutes thereafter. Trooper Borkowski “immediately noticed that [Cogar’s]

eyes were very glassy and bloodshot” and “detected a strong odor of alcoholic

beverage emanating from his person.” Id. at 33. When Trooper Borkowski

asked Cogar if he had been drinking, Cogar stated that he had been “drinking

all day and just wanted to go see his father who was admitted into the

hospital.” Id.

Trooper Borkowski arrested Cogar and charged him with driving under

the influence, disregarding a traffic lane, failing to stop at a stop sign and yield

right of way, careless driving, driving while operating privileges are revoked,

and reckless driving. A jury found Cogar not guilty of the charge of driving

under the influence. The trial court convicted Cogar of the following summary

offenses: one count of driving while operating privileges are suspended3 and

three counts of disregarding a traffic lane.4 On January 2, 2019, the court

sentenced Cogar to a term of 70 days’ county intermediate punishment, to be

served on electronic home monitoring. Cogan filed a timely notice of appeal

to this court, followed by a court-ordered concise statement of errors

3 75 Pa.C.S.A. § 1543(b)(1).

4 75 Pa.C.S.A. § 3309(1).

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complained of on appeal pursuant to Pa.R.A.P. 1925(b). He raises the

following claim on appeal:

Where a borough police officer is on official business, patrols the entire length of the street within his jurisdiction to no avail in response to an anonymous, unverified report of an erratic driver in a two-tone truck, and then intentionally expands his reach by conducting an investigation outside his jurisdiction[] and then observes some cause to stops [sic], should the evidence obtained as a result be suppressed or precluded at trial?

Brief of Appellant, at 7.

Initially, we set forth our standard of review:

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).

Here, Cogar asserts that the trial court erred in failing to suppress all

evidence obtained as a result of Officer Simms’ extraterritorial foray into

Franklin Township. This claim requires us to interpret the Municipal Police

Jurisdiction Act (“MPJA”),5 which provides police with the authority to act as

police officers outside their jurisdiction in limited circumstances. ____________________________________________

5 42 Pa.C.S.A. §§ 8951–8954.

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Commonwealth v. Bergamasco, 197 A.3d 805, 809 (Pa. Super. 2018).

The MPJA is intended to “promote public safety while maintaining police

accountability to local authority; it is not intended to erect ‘impenetrable

jurisdictional walls benefit[ing] only criminals hidden in their shadows.’”

Commonwealth v. Lehman, 870 A.2d 818, 820 (Pa. 2005), quoting

Commonwealth v. Merchant, 595 A.2d 1135, 1139 (Pa. 1991). The MPJA

is to be construed liberally to give effect to its purposes. Lehman, 870 A.2d

at 820.

Section 8952 of the MPJA provides that a municipal police officer may

perform the functions of his or her office anywhere within his or her primary

jurisdiction.6 Section 8953(a) extends the authority of police officers to

exercise official police duties outside of their primary jurisdictions in six

specific and limited circumstances. Relevant here, extraterritorial action by

police officers is authorized:

(3) Where the officer:

(i) has been requested to aid or assist a Federal, State or local law enforcement officer or park police officer;

42 Pa.C.S.A. § 8953(a)(3).7 ____________________________________________

6 An officer’s “primary jurisdiction” is defined, in relevant part, as “[t]he geographical area within the territorial limits of a municipality or any lawful combination of municipalities which employs a municipal police officer[.]” 42 Pa.C.S.A. § 8951.

7Section 8953(a)(3) was recently amended in response to the decision of our Supreme Court in Commonwealth v. Hlubin, 208 A.3d 1032 (Pa. 2019).

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Thus, the question in this matter is whether Officer Simms, acting in

response to a 911 dispatch, based upon an anonymous tip, from the Greene

County Emergency Management Center seeking assistance in locating an

erratic driver on a street located partially in his primary jurisdiction, violated

the MPJA by foraying into another jurisdiction in search of the vehicle in

question. We conclude that he did not.

This Court addressed a similar scenario in Commonwealth v. Lloyd,

701 A.2d 588 (Pa. Super. 1997). There,

while on routine patrol in his primary jurisdiction, [Ellwood City Police] Officer [Jon M.] Bobin received a dispatch from the Ellwood City Police Department requesting him to respond to appellant’s accident in Ellport[, which was outside his primary jurisdiction]. Pursuant to the dispatch, the officer responded to the scene. . . . The Ellwood City Police Department was responsible for dispatching officers to Ellport.

Commonwealth v. Lloyd, 701 A.2d 588, 590–91 (Pa. Super. 1997). Upon

arriving at the scene in Ellport, Officer Bobin observed appellant standing

outside of his vehicle and noticed that his eyes were glassy and that he

smelled of alcohol. Officer Bobin administered field sobriety tests, all of which

appellant failed. Appellant was subsequently taken to the Ellwood City

Hospital where blood was drawn. The blood test revealed that appellant’s

blood alcohol content was .193%. Appellant was later arrested and charged

with DUI. The trial court denied his motion to suppress the evidence obtained

as a result of his arrest by Officer Bobin, and appellant was convicted of DUI. ____________________________________________

See 2019, July 2, P.L. 375, No. 58, § 1.1, imd. effective. The amendment applies retroactively to law enforcement conduct on or after June 15, 1982.

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On appeal, this Court concluded that, under the circumstances

presented, “we have no difficulty concluding that the police department’s

dispatch qualified as a request for aid or assistance” as contemplated by

section 8953. Id. at 591. We reasoned that

[a] holding to the contrary would lead to an absurd result. It would be ludicrous to require Officer Bobin to ignore the dispatch merely because it directed him to act outside his primary jurisdiction. Such a result would not foster municipal control over the police or promote public safety. Rather, such a result would only inure to the benefit of criminals committing crimes in Ellport.

Id.

Similarly, in this case, the safety of the public would be ill-served by

requiring Officer Simms to ignore a dispatch regarding a hazardous driver on

a road straddling two jurisdictions simply because a response might result in

activity outside his primary jurisdiction. The salutary goal of protecting

innocent drivers and pedestrians from the dangers of intoxicated or otherwise

impaired motorists outweighs whatever minimal impact Officer Simms’ actions

may have had on Franklin Township’s ability to maintain accountability over

law enforcement officers within its jurisdiction. Notably, Officer Simms neither

arrested Cogar nor filed a complaint against him. Rather, Officer Simms

responded to the dispatch, located the vehicle in question, and simply

detained its operator for one to two minutes pending the arrival of an officer

with primary jurisdiction. Under these circumstances, we conclude that Officer

Simms’ actions fell within the exception contained in section 8953(a)(3) of the

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MPJA. Accordingly, the trial court did not err in refusing to grant Cogar’s

motion to suppress.8

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/15/2019

8 The fact that the tip precipitating the 911 dispatch was anonymous is not dispositive here. In Hlubin, supra, our Supreme Court analyzed the previous version of section 8953(a)(3), which authorized extraterritorial action “[w]here 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.” The Hlubin court read this language as requiring an officer to possess probable cause before leaving his jurisdiction in response to a request to assist another officer. See Hlubin, 208 A.3d at 1045 (“Giving meaning to the General Assembly’s inclusion of the word ‘otherwise’ necessitates that the reference to ‘probable cause’ applies to both the first and second situations in the subsection—and thus to instances where aid and assistance is requested or where provided in response to a belief that another officer is in need of the same.”). The legislature’s amendment of section 8953(a)(3) pointedly omits any requirement that an officer possess probable cause where his extraterritorial assistance is requested. See 42 Pa.C.S.A. § 8953(a)(3)(i). Once Officer Simms observed Cogar’s vehicle in Franklin Township and began following it, he observed conduct that Cogar concedes provided reasonable suspicion to conduct a traffic stop. See Brief of Appellant, at 10 (“Not until outside his jurisdiction does [Officer Simms] observe any conduct that gives him any reasonable suspicion or probable cause to conduct the traffic stop[.]”). Finally, we note that Cogar recites the superseded version of the statute in his brief and does not acknowledge either Hlubin or the subsequent amendment to section 8953(a)(3).

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