J-S51040-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

WILLIAM MAHLENBROCK,

                            Appellant                    No. 3511 EDA 2014


           Appeal from the Judgment of Sentence December 3, 2014
             in the Court of Common Pleas of Montgomery County
               Criminal Division at No.: CP-46-CR-0006998-2013


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED AUGUST 18, 2015

        Appellant, William      Mahlenbrock, appeals from the        judgment of

sentence imposed following his bench conviction of driving under the

influence of alcohol, highest rate.1 We affirm.

        The trial court aptly set forth the factual history of this case as follows:

              On May 29, 2013[,] at approximately 11:55 p[.]m[.],
        Lower Merion Township Patrol Officer Jeffery Seamans received a
        report of a disturbance. A caller, known to the police, reported
        that a white male fled from the scene of a disturbance behind
        the Bryn Mawr Car Wash in a dark green Sport Utility Vehicle
        (SUV).

             Officer Seamans arrived at the scene less than five
        minutes later, where he began searching the surrounding area
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    75 Pa.C.S.A. § 3802(c).
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      for the dark green vehicle. Soon after, Officer Seamans saw an
      occupied dark colored SUV, parked across two parking spots, in
      the back of an unlit municipal parking lot approximately two
      blocks from the reported disturbance. Officer Seamans then
      pulled into the parking lot and observed a white male in the
      SUV. The vehicle brake lights and reverse lights were on,
      indicating movement. Officer Seamans parked his police cruiser
      ten to fifteen feet behind the SUV, approaching the vehicle
      without activating his emergency lights or siren.

             When Officer Seamans exited his cruiser, he noticed the
      color of the SUV was grey. Officer Seamans concluded that the
      caller was likely mistaken, just as he was, due to the poor
      lighting conditions. As Officer Seamans walked toward the front
      of the SUV, the reverse lights turned off and the SUV was placed
      in park. Officer Seamans began to speak with the operator,
      Appellant, when he noticed a strong odor of alcohol emanating
      from the vehicle. Appellant had glassy, blood-shot eyes and was
      slurring his speech. Believing that Appellant was intoxicated,
      Officer Seamans asked him to turn off the engine and step out of
      the vehicle.

            Officer Seamans watched Appellant get out of the SUV,
      swaying and discarding a breath mint that had been in his
      mouth. Seconds later, Officer Seamans detected a strong odor
      of alcohol on [Appellant’s] breath. [Appellant] was subsequently
      arrested for DUI.

(Trial Court Opinion, 2/12/15, at 1-2).

      On December 5, 2013, Appellant filed a motion to suppress evidence,

which the trial court denied on October 1, 2014, following a hearing. The

case proceeded to a bench trial on December 3, 2014, and the trial court

found Appellant guilty of the above-stated offense. It sentenced Appellant




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to a term of not less than five days nor more than six months’ incarceration.

This timely appeal followed.2

       Appellant raises the following issue for our review:

       I.    Did the trial court err in determining that the officer’s
       interaction with [Appellant] was an investigatory stop which was
       supported by reasonable suspicion[?]

(Appellant’s Brief, at 4).

       Our standard of review is well-settled:

              The standard and scope of review for a challenge to the
       denial of a suppression motion is whether the factual findings are
       supported by the record and whether the legal conclusions
       drawn from those facts are correct. When reviewing rulings of a
       suppression court, we must 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 findings of the
       suppression court, we are bound by those facts and may reverse
       only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Leonard, 951 A.2d 393, 396 (Pa. Super. 2008)

(citation omitted).

       “Further, [i]t is within the suppression court’s sole province as

factfinder to pass on the credibility of witnesses and the weight to be given

their testimony.”       Commonwealth v. Houck, 102 A.3d 443, 455 (Pa.

Super. 2014) (citation and internal quotation marks omitted).

____________________________________________


2
   Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on December 23, 2014. See
Pa.R.A.P. 1925(b). The trial court filed an opinion on February 12, 2015.
See Pa.R.A.P. 1925(a).



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      In his sole issue on appeal, Appellant argues that the trial court erred

in determining that the investigatory stop was supported by reasonable

suspicion.   (See Appellant’s Brief, at 7-11).      Specifically, he claims that

Officer Seamans lacked reasonable suspicion because his grey SUV did not

match the reported description of the fleeing green-colored SUV involved in

the disturbance.    (See id. at 10-11).      He further maintains that Officer

Seamans should have ceased the interaction upon realizing that Appellant’s

SUV was grey, and did not match the description of the green SUV reported

in the call to police. (See id. at 10). This issue lacks merit.

            [O]ur courts have long recognized three levels of
      interaction that occur between the police and citizens that are
      relevant to the analysis of whether a particular search or seizure
      conforms to the requirements of U.S. CONST. amend IV and P.A.
      CONST. art. I, § 8.

            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 respond.
      The second, an “investigative detention” must be supported by
      reasonable suspicion; it subjects a suspect to a stop and period
      of detention, but does not involve such coercive conditions as to
      constitute the functional equivalent of arrest. Finally, an arrest
      or “custodial detention” must be supported by probable cause.

Commonwealth v. Williams, 73 A.3d 609, 613 (Pa. Super. 2013), appeal

denied, 87 A.3d 320 (Pa. 2014) (case citation omitted).

             . . . [P]rior to stopping a citizen for investigative purposes,
      a police officer must possess at least reasonable suspicion that
      of that individual’s involvement in illegal activity based on the
      totality of the circumstances as known to the officer.
      Nevertheless,



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                   [r]easonable suspicion is a less stringent
            standard than probable cause necessary to
            effectuate a warrantless arrest, and depends on the
            information possessed by police and its degree of
            reliability in the totality of the circumstances. In
            order to justify the seizure, a police officer must be
            able to point to specific and articulable facts leading
            him to suspect criminal activity is afoot.           In
            assessing the totality of the circumstances, courts
            must also afford due weight to the specific,
            reasonable inferences drawn from the facts in light of
            the officer’s experience and acknowledge that
            innocent facts, when considered collectively, may
            permit the investigative detention.

Commonwealth v. Howard, 64 A.3d 1082, 1088 (Pa. Super. 2013),

appeal denied, 74 A.3d 118 (Pa. 2013) (citations and quotation marks

omitted).

       Furthermore, “[a] finding of reasonable suspicion does not demand a

meticulously   accurate   appraisal   of   the   facts.”   Commonwealth       v.

Muhammed, 992 A.2d 897, 901 (Pa. Super. 2010) (citation omitted).

“Indeed, even stops based on factual mistakes generally are constitutional if

the mistake is objectively reasonable.” Id. (citation omitted).

       Here, the record reflects that, at approximately midnight, Officer

Seamans responded to a report of a disturbance behind a car wash, and that

a white male involved in the incident had fled from the scene in a dark green

SUV.    (See N.T. Suppression Hearing, 8/29/14, at 4-6, 24).          As Officer

Seamans patrolled the area, he observed a dark colored SUV parked across

two parking spots in a “[v]ery dark” municipal parking lot approximately two

blocks from the car wash. (Id. at 9; see id. at 8-10). As he pulled into the



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parking lot, he observed a white male sitting in the driver’s seat. (See id. at

11).   Officer Seamans testified that he pulled up behind the SUV because

“from the way it was parked in the lot it looked like it was dark green, which

had matched the description of the vehicle that was involved in the

disturbance and subsequently fled the disturbance.”        (Id. at 12).     He

explained that he realized the SUV was grey while he was walking towards

it, and that he continued to approach it:

              [b]ecause I know a lot of times witness statements are not
       exactly correct and the information we always get from radio
       isn’t always correct. Because of the close relation to where the
       car wash was and the vehicle had fled, and the colors, especially
       at nighttime, could be closely resembled. I mean I made the
       mistake up until I was a few feet from the car, so an eyewitness
       could very well do the same. . . .

(Id. at 20; see id. at 19).

       Based on the foregoing, viewing the totality of the circumstances, we

agree with the trial court that Officer Seamans articulated the requisite

reasonable suspicion to approach Appellant’s vehicle, and that his mistake

regarding the color of the SUV was objectively reasonable.      (See Trial Ct.

Op., 2/12/15, at 5); see also Howard, supra at 1088; Muhammed,

supra at 901.    Therefore, we conclude that the court properly denied the

motion to suppress evidence.     See Leonard, supra at 396.       Accordingly,

Appellant’s sole issue on appeal does not merit relief.

       Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/18/2015




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