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Commonwealth v. Hlubin

Superior Court of Pennsylvania

May 23, 2017


         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



          LAZARUS, J.

         Molly Hlubin appeals from the judgment of sentence, entered in the Court of Common Pleas of Allegheny County, following her conviction of two counts of driving under the influence (DUI).[1] After careful review, we affirm.

         The trial court aptly set forth the facts[2] of the underlying case as follows:

[O]n September 29, 2013, police officers from the West Hills DUI Task Force [("Task Force")] conducted a sobriety checkpoint on Steubenville Pike in Robinson Township, Pennsylvania. The 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 New Evidence [it] could introduce, as Exhibit 4, Robinson Township's Resolution 14-2003 that authorized [its] participation in the [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 [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 [Task Force] has policies in place to identify target locations for DUI checkpoints, which [were] admitted into evidence as Commonwealth's Exhibit 1. The [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 become depleted of manpower. At this time, he came into contact with [Hlubin], who was the driver of a vehicle. After introducing himself, Sergeant Ogden asked for her driver's license, registration, and proof of insurance. [Hlubin] initially handed him her Target credit card. While [Hlubin] was obtaining her documentation, Sergeant Ogden noticed an odor [of] alcoholic beverages coming from the vehicle and that [Hlubin] had slurred speech. In addition, [Hlubin] 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 [Hlubin].
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 [Hlubin] 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[3] test, the walk- and-turn test, and the one-legged stand test. [Hlubin] 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, [Hlubin] exhibited two (2) out of eight (8) clues for the walk-and-turn test. [Hlubin] 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 [Hlubin], Officer Sicilia formed an opinion that [Hlubin] was incapable of safely operating a motor vehicle. Thereafter, [Hlubin] 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).

         Hlubin was charged with the aforementioned two counts of DUI. On March 9, 2015, Hlubin filed a pre-trial motion to suppress, alleging that the sobriety checkpoint was unconstitutional and that everything that flowed from the illegal stop should be suppressed.[4] The court denied the motion and the matter proceeded to a bench trial before the Honorable Thomas E. Flaherty. At trial, Hlubin and the Commonwealth stipulated to the admission of the testimony of Officer Sicilia and Sergeant Ogden from the suppression hearing, as well as the results of Hlubin's blood test. Following trial, the court convicted Hlubin on both DUI counts and sentenced her to thirty days of Restrictive Intermediate Punishment, six months of non-reporting probation, and fines.

         Hlubin filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal. A panel of this Court affirmed the trial court's judgment of sentence. See Commonwealth v. Hlubin, 951 WDA 2015 (Pa. Super. filed Oct. 6, 2016) (unpublished memorandum decision). However, that decision was later withdrawn after our Court granted reargument on December 15, 2016. The parties filed new briefs. On reargument, Hlubin presents the following issues for our consideration:

(1) Did the trial court err when it ruled that the checkpoint, which led to [Hlubin's] stop, detention, and arrest, was lawful even though the Commonwealth failed to show compliance with the Intergovernmental Cooperation Act [("ICA")]?
(2) Did the trial court err when it held that Section 8953(a)(3) [of the Municipal Police Jurisdiction Act [("MPJA")]] permits officers to leave their primary jurisdiction for the purpose of participating in a sobriety checkpoint?
(3) Whether or not Officer Sicilia had sufficient probable cause to arrest [Hlubin] for the offense of DUI and to request a chemical test?

         A. Validity of Sobriety Checkpoint and the ICA

Pursuant to the ICA:
(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 (emphasis added). Under section 2305 of the ICA, a local government may enter into any intergovernmental cooperation with another local government upon the passage of an ordinance of its governing body. Id. at § 2305. In such cases, ordinances shall contain seven specific criteria outlined in section 2307 of the ICA.[5]

         The Commonwealth concedes, and we agree, that the DUI checkpoint in the instant case did not comply with the ICA where the 15 municipalities comprising the Task Force did not jointly cooperate by each adopting an ordinance in compliance with sections 2303 and 2305. See 53 Pa.C.S. § 2315 (joint cooperation agreement deemed in force when it has been adopted by ordinance by cooperating local governments). While Robinson Township had proposed a resolution to participate with the Task Force, that resolution was not ratified and adopted by the other Task Force municipalities nor does it contain the required criteria of an ordinance under section 2307. See supra note 6. However, this does not end our inquiry with regard to whether the checkpoint was otherwise valid.

         B. Constitutionality/Legality of Sobriety Checkpoint and the MPJA[6]

         Hlubin claims that because the ICA codifies the process that local governmental units must follow when cooperating with each other "it controls the outcome of this case as well as the legality of all sobriety checkpoints (and all government matters) when the officers from outside the primary jurisdiction are utilized." Appellant's Brief, at 31. Moreover, she contends that "[o]nce it is shown that the Commonwealth failed to comply with the ICA, the trial court's decision that the checkpoint at issue was legally constituted must be reversed [or] Article IX, § 5 of the Pennsylvania Constitution and the ICA are rendered meaningless." Id. We disagree.

         As the Commonwealth notes, while the relevant sections of the local government code apply to "all local governments, "[7] 53 Pa.C.S. § 2301, the MPJA only applies to any "duly employed municipal police officer who is within this Commonwealth, but beyond the territorial limits of his primary jurisdiction." 42 Pa.C.S. § 8953(a). Specifically, the MPJA enumerates a discrete set of circumstances under which a municipal police officer may exercise extra-territorial authority. See generally 42 Pa.C.S. § 8953(a)(1)-(6). Accordingly, we do not agree with Hlubin's claim that Article IX, § 5 of the Pennsylvania Constitution and the ICA will be "rendered meaningless and municipal boundaries will be obliterated" by applying the MPJA in such limited circumstances as the present case. These two statutes can be applied concurrently; they are not mutually exclusive as they address different circumstances that may arise within local ...

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