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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                         Appellant        :
                                          :
                    v.                    :         No. 606 WDA 2018
                                          :
RYAN REX GRAY                             :


                    Appeal from the Order, March 23, 2018,
                in the Court of Common Pleas of Beaver County
               Criminal Division at No. CP-04-CR-0001064-2017


BEFORE: OLSON, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED NOVEMBER 1, 2018

      The Commonwealth appeals from the March 23, 2018 order entered in

the Court of Common Pleas of Beaver County that granted the omnibus

pretrial   motion   to   suppress    physical   evidence   filed   by   appellee,

Ryan Rex Gray. After careful review, we affirm.

      The suppression court set forth the following:

            By Criminal Information dated July 24, 2017[,
            appellee] was charged with three counts of
            DUI,[Footnote 1] two counts of possession of drug
            paraphernalia (a silver grinder and a marijuana
            pipe),[Footnote 2] and one count of Driving Under
            Suspension.[Footnote 3] [Appellee] filed a Motion to
            Suppress Evidence on January 2, 2018. A hearing
            upon this motion was held on February 6, 2017 at
            which time the Commonwealth presented testimony
            from Trooper [Trask Alexander] of the Pennsylvania
            State Police, Beaver County Barracks.
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                 [Footnote 1] Count 1 charged under
                 75 Pa.C.S.A. § 3802(d)(1); Count 2
                 charged       under      75      Pa.C.S.A.
                 § 3802(d)(1)(iii); Count 3 charged under
                 75 Pa.C.S.A. § 3802(d)(2). All counts
                 reflect that that [sic] this is his fourth
                 DUI offense in ten years.

                 [Footnote 2] Both counts (Counts 4 and
                 5 in the information) charged under
                 35 P.S. § 780-113(a)(32).

                 [Footnote 3] Count 6 in the information
                 charged     under      75     Pa.C.S.A.
                 § 1543(b)(1).

          ....

          On February 25, 2017, at approximately 9:52 p.m.,
          the State Police received a tip from a concerned
          neighbor (hereinafter “neighbor”) of two unknown
          trucks[Footnote 4] parked in the driveway of an
          abandoned residence that the “neighbor” claimed
          had been the subject of burglary attempts in the
          past. The “neighbor” provided his identity to the
          police and informed them that he saw people walking
          around with flashlights.

                 [Footnote 4] No other identifying
                 information was provided regarding the
                 trucks, such as make, model, year, plate,
                 color, etc.

          Trp. [Alexander] traveled towards the scene—a trip
          which took approximately 20 minutes.           As
          Trp. [Alexander] was nearing the locality of
          Hookstown Boro., a second call was received from
          the same “neighbor” who relayed that the trucks
          were leaving the property and heading east on
          Georgetown Rd., towards Hookstown.

          Trp. [Alexander] decided to park his cruiser by the
          mini-mart near the intersection of Pine and Main St.
          in Hookstown Boro., to wait for the trucks to appear.


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               Trp. [Alexander] testified at the suppression hearing
               that it was a low traffic area at that time, and “not
               much was going on.”

               Within     minutes     of    parking     his    cruiser,
               Trp. [Alexander] observed two trucks pass by his
               location.    Trp. [Alexander] began following the
               trucks, both of which turned right onto Main St. and
               proceeded towards Mill Creek Ballpark where
               Trp. [Alexander] initiated a traffic stop of [appellee],
               who was driving a Silver Ford F-150.            At the
               suppression hearing, Trp. [Alexander] testified that
               he did not observe any traffic infractions while
               following [appellee’s] vehicle and that his decision to
               conduct a traffic stop was solely based on suspicion
               that the occupants of the vehicles were involved in a
               suspected burglary—a suspicion based solely on the
               call from the “neighbor[.”]

               Upon       approaching        [appellee’s]    vehicle,
               Trp. [Alexander] removed [appellee] from the
               vehicle for officer safety purposes. During this time,
               Trp. [Alexander] allegedly detected the odor of
               marijuana emanating from the vehicle.            Upon
               questioning [appellee], [appellee] purportedly stated
               that he possessed drug paraphernalia inside the
               vehicle, and an ensuing search revealed the
               presence of a silver metal grinder and a blue-tipped
               pipe.

Suppression court opinion, 3/26/18 at 1-3 (footnote 5 omitted).

         The record reflects that following entry of the order granting appellee’s

motion to suppress, the Commonwealth filed a timely notice of appeal to this

court.     Within its notice of appeal, the Commonwealth certified that the

suppression      court’s   order   would    terminate   or   substantially   handicap

appellee’s prosecution.      See Pa.R.A.P. 311(d) (permitting Commonwealth

appeal from an interlocutory order if it certifies that the order will terminate



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or substantially handicap the prosecution).     Thereafter, the suppression

court filed its Rule 1925(a) opinion wherein it stated that its reasons for

entering the order granting appellee’s motion to suppress are fully set forth

in its March 26, 2018 opinion.

      The Commonwealth raises the following issue for our review:1

            Whether the suppression court erred in granting
            appellee’s motion to suppress evidence stemming
            from a traffic stop on July 24, 2017, where
            Trooper Alexander of the Pennsylvania State Police
            to [sic] stopped appellee’s vehicle because of
            suspicion of a suspected burglary?

Commonwealth’s brief at 6 (full capitalization omitted).

            When     the   Commonwealth       appeals   from     a
            suppression order, we follow a clearly defined
            standard of review and consider only the evidence
            from the defendant’s witnesses together with the
            evidence of the prosecution that, when read in the
            context of the entire record, remains uncontradicted.
            The suppression court’s findings of fact bind an
            appellate court if the record supports those findings.
            The suppression court’s conclusions of law, however,
            are not binding on an appellate court, whose duty is
            to determine if the suppression court properly
            applied the law to the facts.

            Our standard of review is restricted to establishing
            whether the record supports the suppression court’s
            factual findings; however, we maintain de novo
            review    over   the  suppression    court’s    legal
            conclusions.




1 We note that by correspondence dated August 20, 2018, appellee informed
this court that he would not file a brief in this case because the suppression
court’s March 26, 2018 opinion fully addressed his position.


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Commonwealth v. Korn, 139 A.3d 249, 252-253 (Pa.Super. 2016)

(internal citations and quotation marks omitted).

             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) (citations

omitted).

     Here, the Commonwealth contends that Trooper Alexander had

reasonable   suspicion    to   stop   appellee’s   vehicle   for   purposes   of   an

investigative detention based on the information he received that was called

in to police by an identified caller concerning a potential burglary in

progress.

     “The appellate courts have mandated that law enforcement officers,

prior to subjecting a citizen to an investigatory detention, must harbor at

least a reasonable suspicion that the person seized is then engaged in

unlawful activity.”      Commonwealth v. Barber, 889 A.2d 587, 593

(Pa.Super. 2005) (citation omitted).          “Reasonable suspicion is a less

demanding standard than probable cause because it can be established by


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information that is different in quantity and quality than that required for

probable cause; it can arise from information that is less reliable than that

required to show probable cause.” Commonwealth v. Emeigh, 905 A.2d

995, 998 (Pa.Super. 2006) (citation omitted).

           To meet the standard of reasonable suspicion, “the
           officer must point to specific and articulable facts
           which, together with the rational inferences
           therefrom, reasonably warrant the intrusion.          In
           ascertaining the existence of reasonable suspicion,
           we must look to the totality of the circumstances to
           determine whether the officer had reasonable
           suspicion that criminal activity was afoot.” Barber,
           supra at 593 (citations and quotations omitted).
           Further, “police officers need not personally observe
           the illegal or suspicious conduct, but may rely upon
           the information of third parties, including ‘tips’ from
           citizens.” Id.

Commonwealth v. Smith, 904 A.2d 30, 35-36 (Pa.Super. 2006).

           When an identified third party provides information
           to the police, we must examine the specificity and
           reliability of the information provided.            The
           information supplied by the informant must be
           specific enough to support reasonable suspicion that
           criminal activity is occurring. To determine whether
           the information provided is sufficient, we assess the
           information under the totality of the circumstances.
           The informer’s reliability, veracity, and basis of
           knowledge are all relevant factors in this analysis.

Barber, 889 A.2d at 593-594 (citation omitted). “A tip that comes from an

informer known to the police may carry enough reliability to allow for an

investigative stop, even though the same tip from an anonymous source

would not.” Emeigh, 905 A.2d at 998 (citation omitted).




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      Here, in granting appellee’s motion to suppress, the trial court

concluded that:

            the information provided [to Trooper Alexander] was
            based on a previously unknown “neighbor’s”
            supposition.      There was no description or
            identification of the individual(s) who were the
            subject of his concern, and only an extremely vague
            description of vehicle(s) he claimed were in an area
            near an abandoned house. While he expressed a
            concern about past burglaries there was no
            indication that the “individuals” or “trucks” involved
            were not authorized to be on the property.

            While [Trooper Alexander] was acting in good faith,
            his action was in response to information that was
            based on a vaguely described general hunch that did
            not justify intrusion on [appellee’s] constitutionally
            guaranteed rights.

Trial court opinion, 3/26/18 at 9.

      Our review of the record demonstrates that the record supports the

suppression court’s findings of fact and that the suppression court properly

applied the law to the facts to conclude that the information supplied by the

caller was not specific enough to support reasonable suspicion of criminal

activity.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 11/1/2018




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