J-S38033-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                         Appellant          :
                                            :
           v.                               :
                                            :
KATHERINE LEIGH PREUSSER,                   :
                                            :
                         Appellee           :   No. 18 EDA 2014


            Appeal from the Order Entered November 27, 2013,
            In the Court of Common Pleas of Delaware County,
            Criminal Division, at No. CP-23-CR-0002915-2013.


BEFORE: FORD ELLIOTT, P.J.E., BOWES and SHOGAN, JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED SEPTEMBER 23, 2014



appeals from the order entered on November 27, 2013, that granted the

suppression motion filed by Appellee, Katherine Leigh Preusser. We affirm.

     The suppression court made the following findings of fact:


     charged with Possession of a Small Amount of Marijuana for
     Personal Use,1 Possession of Drug Paraphernalia,2 Corruption of
     Minors,3 and Furnishing Liquor to Minors4 relating to an incident
     that occurred on March 23, 2013 at approximately 11 p.m. [The
     arrest was conducted] by Trooper Jerrold Hatfield of the
     Pennsylvania State Police.
           1
               35 [P.S.] §780-113(a)(31).
           2
               35 [P.S.] §780-113(a)(32).
           3
               18 Pa.C.S. §6301(a)(1)(i).
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            4
                18 Pa.C.S. §6310.1(A).

      2. On July 2, 2013, Defendant, through counsel, filed a Motion to
      Suppress, seeking to suppress all physical evidence, and


      3. On November 1, 2013, a Suppression Hearing was held on


      4. Trooper Hatfield, a 5½-year Patrol Trooper for Troop K Media
      Patrol Barracks of the Pennsylvania State Police, testified at the
      Suppression Hearing. (N.T. 11/1/13 p. 8).

      5. Trooper Hatfield testified that at approximately 11:00 p.m. on
      March 23, 2013, a Saturday night, he was on duty, in uniform,
      and operating a marked Pennsylvania State Police patrol vehicle.
      The Trooper was driving eastbound on Baltimore Pike in
      Middletown    Township,       Delaware     County,   Pennsylvania
      approaching the area of the Franklin Mint property.

      6. The Trooper observed a vehicle pulling suddenly from the
      right-hand lane of travel onto the shoulder and then into a
      driveway. The driveway leads to a business that has been closed

      numerous break-ins since its closing. (N.T. 11/1/13 p. 9).

      7. Earlier in 2012, Trooper Hatfield handled a break-in at the
      Franklin Mint property which was approximately 75 yards from
      the Lobster Pot property and during that incident, scrap metal
      was stolen from the Franklin Mint Museum. There have been
      numerous incidents in the area, approximately 1-½ mile stretch
      along Baltimore Pike, wherein the buildings have been stripped
      of all their copper and scrap metal. The area has been posted
                                 5
                                   (N.T, 11/1/13 pp. 8-12).
            5

            D
            evidence without objection as DS-1, (N.T. 11/1/13
            p.105).[1]


1
 The video recording of this incident was not included in the certified record,
and therefore, we did not consider it in rendering our decision. See

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     building at the end of the driveway. The building was the site of
     a former business ca


     (N.T. 11/1/13 p. 13). As the vehicle attempted to travel down
     the driveway, once the Trooper positioned his vehicle behind it,
     the vehicle attempted to back down the driveway towards the
     shoulder of the highway. Then, Trooper Hatfield stopped his car,
     exited and approached the vehicle. The Trooper made a driver-
     side approach of the vehicle and asked the driver for his license,
     registration and insurance.

     9. The driver was a Minor, who produced a Pennsylvania Junior

     operate a vehicle after 11 p.m. (N.T. 11/1/13 pp. 13-15). The
     Minor-driver told Trooper Hatfield that they pulled over because
     his license had expired and the Defendant was going to begin
     driving. (N.T. 11/1/13 p. 39). Trooper Hatfield questioned the
     Minor about his whereabouts that evening. The Minor replied
     that he was coming from the Granite Run Mall Movie Theater and
     that his home was in Folsom, Pennsylvania. If he had left the
     Movie Theater and headed directly home he was coming from
     the wrong direction. The Trooper asked him what movie he had
     seen and he re                                         -18).

     10. At that point, he asked the Defendant, the front-seat
     passenger, to step out of the vehicle. As the Defendant stepped

     cans between the passenger seat and the door, so when she

     11/1/13 p. 16). The Defendant told the Trooper that they had
     seen a romantic comedy movie in Chadds Ford, Pennsylvania,
     but she did not recall the name of the movie. (N.T. 11/1/13 p.
     17). When the Defendant was asked what her relationship was



Commonwealth v. Edwards, 71 A.3d 323, 324 n.1 (Pa. Super. 2013)
(stating that an appellate court is limited to considering only those facts
which have been duly certified in the record on appeal and, for purposes of
appellate review, what is not of record does not exist).

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     mother through a school connection. (N.T. 11/1/13 p. 18). She
                                                   d it was registered
     to her ex and it was in the process of being transferred over to


     11. A third person, a Minor female, was in the rear seat of the
     car. She was asked to exit the vehicle. She provided the Trooper
     with her Ridley High School identification card and told the
     Trooper that she was 17 years old. Trooper Hatfield questioned
     her about her whereabouts that evening. She replied that they
     were coming from the Granite Run AMC Theater and that they
     had just seen the movie
     11/1/13 p. 19). The Trooper testified that she smelled of alcohol.
     He gave her a PBT, [portable] breath test, and her reading was
     .022, indicating that she tested positively for some consumption
     of alcohol.

     12. At this point, the Defendant was arrested, taken into custody
     and a tow was called for the vehicle. The Defendant was arrested
     for Furnishing Alcohol to Minors. A search of the vehicle located:
     a small amount of marijuana in the glove box, a water bong
     behind th
     passenger seat, and a partially consumed beer that was located
     in the rear seat compartment.6 A search was conducted because
     it was police department policy that when a vehicle was towed it
     must be checked for valuables or contraband. (N.T. 11/1/13 pp.
     22-23).
           6

           some unidentified pills in the trunk. However, they

                                                    . 11/1/13 p.
           45).

     13. Trooper Hatfield testified on cross-examination that he did
     not get any 911 calls, or radio calls about burglaries on
     Baltimore Pike on the evening of March 23, 2013. He did not get
     any radio calls about burglaries at the former Lobster Pot on
     Baltimore Pike that night. (N.T. 11/1/13 p. 25). He did not get
     any calls about a silver, Toyota Corolla (a description of the

                                                           y 3 to 4 car


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     lengths ahead of his vehicle and it was traveling within the speed
     limit. (N.T. 11/1/13 p. 27). The driveway that the Toyota
     entered contained a brick entrance-way within the first car
                                                                 posted
     on the brick entrance-way for that driveway that may not have
     been visible from Baltimore Pike but would be visible once the
     vehicle was stopped in the driveway. (N.T. 11/1/13 pp.29-30).
     The Trooper testified that this area of Baltimore Pike is not very
     well lit. (N.T, 11/1/13 p. 31).


     Toyota, it made an abrupt lane change from its lane onto the
     shoulder and into the driveway. The vehicle was approximately
     one or two car lengths away, when the Trooper activated his
     spotlight. The Toyota stopped within one car length of the
     driveway. As soon as the vehicle pulled into the driveway, the
     Trooper activated his lights and pulled in behind it. Once the
                                                     cle, the vehicle

     Corolla is free to leave and just back out away from your car? A.
                                                      -31).

     15. The Trooper testified that he pointed his flashlight at the
     Minor-driver and asked him to step out of the vehicle. The Minor

     driver to drive after 11 p.m. The Minor told the Trooper that the
     reason they pulled the vehicle over was due to his license
     expiring, the Defendant was going to begin driving. (The
     Defendant had a nonrestricted license). The stop occurred just
     after 11 p.m. The Trooper asked the driver if he had been
     drinking and he replied that he had not. When the Trooper made
     initial contact with the Minor-driver his eyes appeared bloodshot.
     The Trooper administered a PBT, portable breath test, to him
     and it indicated that he had not been drinking that night. (N.T.
     11/1/13 p. 43).

     16. Subsequently, the Trooper walked to the passenger-side
     front door and asked the Defendant to exit the vehicle. She




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     17. The Trooper testified that he was never in fear for his own
     safety during the traffic stop. (N.T. 11/1/13 p.40). The
     Defendant was an adult female and the driver was a male and
     the rear-passenger was a female, both 17-year-old Minors.

     18. The Defendant never gave the Trooper consent to search the
     vehicle or trunk, nor did he ever obtain a warrant to search the
     vehicle or trunk. (N.T. 11/1/13 p.41).

     19. At the Suppression Hearing, as the parties viewed the

     was about a car length up the driveway prior to the illumination

     view the videotape the Trooper testified as follows:

           Q. You put your lights on, the car begins to back up.

           your lights on with the torch illuminating the interior
           of this vehicle this car is trying to back out and

           leave? A. It was not free to leave... He physically

           free to leave, correct? A. Correct. Q. Even if they
           could physically through some fancy maneuvering

           observed no violations of the motor vehicle code,
           right? A. Correct. (N.T. 11/1/13 pp. 55-57).

     [20]. The Trooper also testified that he had no radio calls that
     night that this car had committed any crimes. The last incident
     that he had handled with respect to a crime committed in the
     area, which was about 75 yards from the Lobster Pot property,
     was in 2012. (N.T. 11/1/13 p.57).

Suppression Court Order, 11/27/13, at 1-5.

     Based on these findings the suppression court concluded that Trooper




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an investigatory detention. Suppression Court Order, 11/27/13, at 8. The

Commonwealth filed a timely appeal.2

       On appeal, the Commonwealth raises the following issues for this




       suppress the evidence?

             1. Did the trial court err by concluding as a matter of
             law that the police lacked reasonable suspicion to
             believe that criminal activity was afoot?

             2. Did the trial court err by concluding as a matter of
             law that the police obtained all evidence as a result
             of the purported unconstitutional investigative
             detention and, pursuant to Wong Sun[3] and the fruit
             of the poisonous tree principle, the evidence should
             be suppressed?
                                 4



       We begin by setting forth our standard and scope of review:

             When the Commonwealth appeals from a suppression
       order, this Court may consider only the evidence from the


2
  The Commonwealth may appeal from an order that does not end the entire
case if it certifies in its notice of appeal that the order will terminate or
substantially handicap the prosecution. Commonwealth v. Lark, 91 A.3d
165, 166 n.1 (Pa. Super. 2014); Pa.R.A.P. 311(d). The Commonwealth
included this certification in its notice of appeal. Notice of Appeal, 12/18/13.
3
    Wong Sun v. United States, 371 U.S. 471, 488 (1963) (which stands for



4
  The argument portion of the C
into one discussion. Because these issues are interrelated, we shall address



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      prosecution that, when read in the context of the record as a
      whole, remains uncontradicted. In our review, we are not bound

      determine if the suppression court properly applied the law to

      because, as the finder of fact, it is the suppr
      prerogative to pass on the credibility of the witnesses and the
      weight to be given to their testimony.

Commonwealth v. Hudson, 92 A.3d 1235, 1241 (Pa. Super. 2014)

(citations omitted).

      At the outset, we note that there are three distinct levels of interaction

between law enforcement and the general public. The first level is the mere

encounter, which need not be supported by any level of suspicion, but which

carries no official compulsion to stop or respond.        Commonwealth v.

Clinton, 905 A.2d 1026, 1030 (Pa. Super. 2006). The second level is the

investigative detention, which must be supported by reasonable suspicion.

Id. Finally, the third level is an arrest or custodial detention, which must be

supported by probable cause. Id.

      At issue in the case at bar is whether there was reasonable suspicion



this Court has explained:

      Reasonable suspicion requires a finding that based on the
      available facts, a person of reasonable caution would believe the
      intrusion was appropriate.

            Reasonable suspicion exists only where the officer is
            able to articulate specific observations which, in
            conjunction with reasonable inferences derived from

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           those observations, led him reasonably to conclude,
           in light of his experience, that criminal activity was
           afoot and that the person he stopped was involved in
           that activity. Therefore, the fundamental inquiry of
           a reviewing court must be an objective one, namely,
           whether the facts available to the officer at the
           moment of intrusion warrant a [person] of
           reasonable caution in the belief that the action taken
           was appropriate.

Commonwealth v. Chambers

either the initial stop or the search is found to be unreasonable, the remedy

is to exclude the evidence derived from the illegal government activity as

                              Commonwealth v. Simmons, 17 A.3d 399,

403 (Pa. Super. 2011); Wong Sun, 371 U.S. at 488.

     Here, the Commonwealth argues that the suppression court applied an



Brief at 19. The Commonwealth claims that the suppression court did not

properly consider the totality of the circumstances.         Id. at 20-22.

Additionally, the Commonwealth argues that when the evidence is viewed

through the eyes of an experienced police officer, reasonable suspicion was

established. Id. We disagree.

     The suppression court considered the totality of the circumstances and

correctly applied the proper standard and legal analysis relevant to

investigative detentions. We reiterate that the record reveals that Trooper

Hatfield saw a vehicle abruptly leave the roadway on a dimly lit street near

an area where there had been vandalism the previous year, and the trooper

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conceded that no motor vehicle violation was observed. While the trooper

could have approached the vehicle to check on the safety of the occupants,



where the occupants of the car would have been free to leave, the trooper

instead activated his emergency lights and seized the vehicle prior to any

indication of criminality.5

position that the trooper was reasonable in his conclusion that criminal

activity was afoot. As noted above, this Court is cognizant that the totality



determination as to when reasonable suspicion exists. Chambers, 55 A.3d

at 1215. However, the evidence on the record before us reveals only that

the trooper had a hunch that the occupants of this car may have intended to

vandalize property in the area.    Pursuant to our standard of review, we

discern no error and conclude that the suppression court was correct in its

conclusion.

      Moreover, because we conclude that the suppression court was correct

in finding that the initial stop of the car was illegal, the subsequently

discovered evidence was correctly suppressed as fruit of the poisonous tree.

Simmons, 17 A.3d at 403; Wong Sun, 371 U.S. at 488. Accordingly, we




5
 Trooper Hatfield testified that Appellee and the occupants of the vehicle
were not free to leave. N.T., 11/1/13, at 33.

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conclude that the Commonwealth is entitled to no relief on appeal, and we



     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/23/2014




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