J-S15038-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

TERRELL DARNELL SMITH

                            Appellant                     No. 1207 MDA 2014


              Appeal from the Judgment of Sentence June 17, 2014
                  In the Court of Common Pleas of York County
               Criminal Division at No(s): CP-67-CR-0005207-2013


BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                                FILED APRIL 14, 2015

        Appellant Terrell Darnell Smith appeals from the judgment of sentence

entered in the York County Court of Common Pleas following his jury trial

convictions for driving under the influence (“DUI”) of a controlled substance,

Schedule I, and DUI of a controlled substance, Schedule I or II metabolite.1

We affirm.

        The relevant facts and procedural history of this appeal are as follows.

On June 26, 2013, at approximately 2:19 a.m., Trooper Jonathan Confer

activated the lights in his police car to pull over a vehicle driving on

Interstate 83.     N.T., 11/8/13, at 4-6.      Appellant, who was driving a blue

Mazda Protege on Interstate 83 in front of the targeted vehicle, believed the

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1
    75 Pa.C.S. § 3802(d)(1)(i) and (iii), respectively.
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trooper had activated his lights to initiate a stop of his vehicle.           N.T.,

5/15/14, at 137-38. Both vehicles pulled over to the side of the road. N.T.,

11/8/13, at 6.      The targeted vehicle parked directly in front of the police

vehicle, and Appellant’s vehicle parked about nine or ten car lengths in front

of the targeted vehicle.       Id. at 14.      After Trooper Confer and his partner

approached the targeted vehicle, Trooper Confer left his partner with the

targeted vehicle and approached Appellant’s vehicle to determine why

Appellant pulled his vehicle to the side of the road. Id. at 6. Trooper Confer

observed Appellant’s bloodshot and glassy eyes and noticed a strong odor of

alcohol emanating from Appellant. Id. at 7. Appellant admitted to drinking

alcohol and smoking marijuana earlier that evening, and Trooper Confer

conducted field sobriety tests.         Id. at 8.     Trooper Confer then arrested

Appellant for DUI.        Id. at 13.       A subsequent blood test revealed the

presence of marijuana and a small amount of alcohol in Appellant’s blood. 2

N.T., 5/15/14, at 122, 125.

       On November 4, 2013, Appellant filed a pre-trial motion to suppress

evidence. The court conducted a suppression hearing on November 8, 2013

and denied Appellant’s suppression motion.



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2
 Specifically, Appellant’s blood alcohol level was .024, and there were Delta-
9 THC of 3.9 nanograms per milliliter and Delta-9 Carboxy THC of 85
nanograms per milliliter in his blood, which indicated the presence of
marijuana. N.T., 5/15/14, at 122, 125.



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       On May 16, 2014, a jury found Appellant guilty of DUI controlled

substance, Schedule I (Count 3), and DUI controlled substance, Schedule I

or II metabolite (Count 4).3            On June 17, 2014, the court sentenced

Appellant to 90 days to 5 years’ incarceration and a fine of $1,500.00 on

Count 3. The court imposed no further sentence on Count 4. On July 18,

2014, Appellant filed a notice of appeal.4

       On July 28, 2014, the trial court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

and Appellant timely complied on August 15, 2014.

       Appellant raises the following issues for our review:

          WHETHER THE TROOPER SUBJECTED APPELLANT TO AN
          UNLAWFUL INVESTIGATORY DETENTION UNDER THE 4TH
          AMENDMENT AND ARTICLE I, SECTION 8 BECAUSE THE
          TROOPER LACKED REASONABLE SUSPICION OR PROBABLE
          CAUSE TO CONDUCT A TRAFFIC STOP ON APPELLANT’S
          VEHICLE?

          WHETHER THE SUPPRESSION COURT ERRED IN FINDING
          THAT APPELLANT WAS NOT REQUIRED TO PULL OVER
          AFTER THE TROOPER ACTIVATED HIS EMERGENCY LIGHTS
          BECAUSE APPELLANT’S BELIEF THAT THE TROOPER
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3
   The jury acquitted Appellant of Counts 1 (DUI: general impairment/
incapable of safe driving, 75 Pa.C.S. § 3802(a)(1)), 2 (careless driving, 75
Pa.C.S. § 3714(a)) and 5 (DUI: controlled substance – combination, 75
Pa.C.S. § 3802(d)(3)).
4
  Along with his notice of appeal, Appellant filed a petition to file a notice of
appeal nunc pro tunc because he failed to file his appeal within 30 days of
sentence. The court granted Appellant’s petition. Thus, we have jurisdiction
to decide this appeal.




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           SUBJECTED HIM TO A SEIZURE WAS REASONABLE UNDER
           THE 4TH AMENDMENT AND ARTICLE I, SECTION 8?

Appellant’s Brief at 4.

      For ease of disposition, we will address Appellant’s claims together.

Appellant argues that the police officers did not have probable cause or

reasonable suspicion to stop Appellant. Appellant claims that when he saw

the flashing lights, he thought he was subject to a traffic stop, and that this

belief was reasonable. He claims that the stop was an illegal investigatory

detention that entitles him to suppression of evidence. We disagree.

      We review the denial of a suppression motion as follows:

           Our standard of review in addressing a challenge to a trial
           court’s denial of a suppression motion is limited to
           determining whether the factual findings are supported by
           the record and whether the legal conclusions drawn from
           those facts are correct.

           We may consider only the evidence of the prosecution and
           so much of the evidence for the defense as remains
           uncontradicted when read in the context of the record as a
           whole. Where the record supports the findings of the
           suppression court, we are bound by those facts and may
           reverse only if the court erred in reaching its legal
           conclusions based upon the facts.

Commonwealth v. Gillespie, 103 A.3d 115, 118 (Pa.Super.2014) (quoting

Commonwealth v. Williams, 941 A.2d 14, 26–27 (Pa.Super.2008) (en

banc )).

           Where…the appeal of the determination of the suppression
           court turns on allegations of legal error, the suppression
           court’s legal conclusions are not binding on an appellate
           court, whose duty it is to determine if the suppression
           court properly applied the law to the facts. Thus, the


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            conclusions of law of the courts below are subject to
            plenary review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa.2010), cert. denied, 131

S.Ct. 110, 178 L.Ed.2d 32 (2010) (internal citations and quotation marks

omitted).

      There are three types of interactions between police officers and

citizens.     Commonwealth v. Stevenson, 832 A.2d 1123, 1126-27,

(Pa.Super.2003).      “Interaction between citizens and police officers, under

search and seizure law, is varied and requires different levels of justification

depending upon the nature of the interaction and whether or not the citizen

is detained.” Id.

            Such interaction may be classified as a “mere encounter,”
            an “investigative detention,” or a “custodial detention.” A
            “mere encounter” can be any formal or informal interaction
            between an officer and a citizen, but will normally be an
            inquiry by the officer of a citizen. The hallmark of this
            interaction is that it carries no official compulsion to stop
            or respond.

            In contrast, an “investigative detention,” by implication,
            carries an official compulsion to stop and respond, but the
            detention is temporary, unless it results in the formation of
            probable cause for arrest, and does not possess the
            coercive conditions consistent with a formal arrest. Since
            this interaction has elements of official compulsion it
            requires “reasonable suspicion” of unlawful activity. In
            further contrast, a custodial detention occurs when the
            nature, duration and conditions of an investigative
            detention become so coercive as to be, practically
            speaking, the functional equivalent of an arrest.

            “The protection against unreasonable searches and
            seizures afforded by the Pennsylvania Constitution is
            broader than that under the Federal Constitution.”


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          Commonwealth v. Jackson, 698 A.2d 571, 573
          (Pa.1997).      However, “[i]n determining whether
          reasonable suspicion exists for a Terry[5] stop, the inquiry
          is the same under either Article 1, Section 8 of the
          Pennsylvania Constitution or the Fourth Amendment of the
          United States Constitution.”         Commonwealth v.
          McClease, 750 A.2d 320, 324 (Pa.Super.2000).

          To determine if an interaction rises to the level of an
          investigative detention, i.e., a Terry stop, the court must
          examine all the circumstances and determine whether
          police action would have made a reasonable person believe
          he was not free to go and was subject to the officer’s
          orders. Commonwealth v. Sierra, 723 A.2d 644, 646
          ([Pa.]1999). An investigative detention, unlike a mere
          encounter, constitutes a seizure of a person and thus
          activates the protections of Article 1, Section 8 of the
          Pennsylvania     Constitution.       Commonwealth          v.
          Melendez, 676 A.2d 226, 229 ([Pa.]1996). To institute
          an investigative detention, an officer must have at least a
          reasonable suspicion that criminal activity is afoot. Sierra,
          supra at 176, 723 A.2d at 647. Reasonable suspicion
          requires a finding that based on the available facts, a
          person of reasonable caution would believe the intrusion
          was appropriate. See Commonwealth v. Zhahir, 751
          A.2d 1153 (Pa.2000).

Commonwealth v. Stevenson, 832 A.2d 1123, 1127-29 (Pa.Super.2003).

       The remedy for illegal seizures and searches “is exclusion of the fruits

of the illegal police conduct—under both the Fourth Amendment and under

Article I Section 8. That general rule of exclusion, of course, is subject to

numerous exceptions.”         Commonwealth v. Johnson, 86 A.3d 182, 187

(Pa.2014). The exclusionary rule was created to “deter deliberate, reckless,


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5
    Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).



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or grossly negligent conduct, or in some circumstances recurring or systemic

negligence.” Id. at 193 (internal citations omitted).

      The suppression hearing testimony revealed that Trooper Confer

engaged his emergency lights to pull over the vehicle driving directly behind

Appellant, and that the Trooper did not intend to stop Appellant. However,

Appellant also pulled over his vehicle, mistakenly believing that Trooper

Confer intended to stop him. When Trooper Confer approached Appellant’s

vehicle to ascertain why Appellant stopped, Appellant’s bloodshot eyes and

odor of alcohol made his intoxication immediately apparent. Appellant then

admitted to drinking alcohol and smoking marijuana earlier that evening.

      Based on this evidence, the trial court correctly determined that the

incident began as a mere encounter which transformed into a custodial

detention after the Trooper observed Appellant’s intoxication:

         We note that, if anything, we’d call this an inadvertent
         stop.     The police didn’t actually stop [Appellant].
         [Appellant] stopped voluntarily. So there’s nothing wrong
         with the stop.

         I guess it’s defense counsel’s argument that the troopers
         didn’t have the right to even approach the vehicle, which
         we don’t believe is correct, and we don’t believe it was an
         investigative detention.

         Accordingly, we don’t believe the troopers did anything but
         have a mere encounter with [Appellant] which then gave
         them probable cause to believe that [Appellant] was under
         the influence.

         And based on the trooper’s testimony surrounding the field
         sobriety tests, we believe that the arrest was proper. So
         we’ll deny the motion to suppress.

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N.T., 11/8/13, at 28-29.

     The trial court’s factual findings are supported by the record, and its

legal conclusions are correct. See Gillespie, supra. We see no error in the

trial court’s decision to deny Appellant’s suppression motion.   Accordingly,

we affirm.

     Judgment of sentence affirmed.

     Judge Wecht joins in the memorandum.

     Judge Lazarus files a concurring statement in which Judge

Wecht and Judge Jenkins join.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/14/2015




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