J-A30034-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                Appellee                 :
                                         :
                  v.                     :
                                         :
TYLER COOPER MCQUAID,                    :
                                         :
                Appellant                :      No. 372 WDA 2018

          Appeal from the Judgment of Sentence February 15, 2018
             in the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0002539-2017

BEFORE:     SHOGAN, J., KUNSELMAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:          FILED FEBRUARY 7, 2019

     Tyler Cooper McQuaid (Appellant) appeals from the February 15, 2018

judgment of sentence of three to six days of incarceration following his

nonjury convictions for driving under the influence (DUI) of a controlled

substance and DUI of a controlled substance - impaired ability. Specifically,

Appellant challenges the denial of his pretrial suppression motion.    Upon

review, we reverse.

     At 3:08 p.m. on November 25, 2016, Officer Joseph Daransky of the

Leetsdale Borough Police Department received a 911 dispatch for an

unconscious male in the driver’s seat of a red Toyota Corolla, with a

specified license plate number, in the Wendy’s parking lot at the Quaker

Valley Village Shopping Center.   N.T., 10/13/2017, at 5-7.    When Officer

Daransky arrived at the Wendy’s parking lot approximately two minutes



*Retired Senior Judge assigned to the Superior Court.
J-A30034-18


later, he did not find any vehicle matching the 911 dispatch. Id. at 9-10.

However, as Officer Daransky was leaving the Wendy’s parking lot, he

observed a male driving a red Corolla, with a license plate matching the

dispatch description, making a right-hand turn out of the GetGo gas station

across the street.     Id. at 10-11, 17.    At that point, Officer Daransky

activated his overhead lights and siren to initiate a traffic stop for the

purpose of checking on the well-being of the driver based on the 911

dispatch. Id. at 12-13, 18.

      Appellant complied with the traffic stop. At no point while Appellant

was driving did Officer Daransky observe Appellant commit any motor

vehicle violations.   Id. at 13-15.   After backup arrived, Officer Daransky

approached Appellant as he sat in the driver’s seat of the vehicle. Id. at 14.

Appellant’s eyes were glassy, red, and the pupils were dilated. Id. at 15.

Based on these observations, Officer Daransky believed that Appellant may

have been under the influence of a controlled substance and asked him to

perform three field sobriety tests.   See Affidavit of Probable Cause at 2.1

Based on his performance of the tests and Officer Daransky’s observations,

Appellant was placed under arrest for DUI of an unknown controlled


1 At the nonjury trial, counsel for both parties stipulated to the entry of the
affidavit of probable cause, Officer Daransky’s suppression hearing
testimony, the incident report, the lab report for Appellant’s blood draw, and
photographs from the scene, to establish the elements of the crimes
charged. N.T., 2/15/2018, at 2-3.




                                      -2-
J-A30034-18


substance. Id. Thereafter, Appellant was subjected to a blood draw, which

revealed the presence of cannabinoids and fentanyl in his blood.          N.T.,

2/15/2018, at 3.

      Prior to trial, Appellant filed a motion to suppress. A hearing was held

where the aforementioned facts were developed.        The trial court took the

matter under advisement, and denied the motion on January 18, 2018.2

N.T., 1/18/2018, at 2.     Thereafter, Appellant was convicted following a

stipulated nonjury trial and sentenced as indicated above.

      Appellant timely filed a notice of appeal.3      Appellant presents one

question for this Court’s consideration: “Whether the trial court erred in

denying [Appellant’s] motion to suppress evidence obtained during a traffic

stop that was predicated entirely on an uncorroborated anonymous tip, and

thus was not supported by reasonable suspicion, in violation of the federal


2 The trial court did not issue its suppression findings of fact and conclusions
of law, as mandated by Pa.R.Crim.P. 581(I), until after Appellant filed this
appeal. See Trial Court Opinion, 4/13/2018. See also N.T., 1/18/2018, at
2; N.T., 2/15/2018, at 3. “[T]he filing of a 1925(a) opinion is no substitute
for the failure to make findings of fact and conclusions of law on the record
at the conclusion of a suppression hearing in accordance with Pa.R.Crim.P.
581(I).” Commonwealth v. Grundza, 819 A.2d 66, 68 n.1 (Pa. Super.
2003). See also Commonwealth v. Millner, 888 A.2d 680, 688–89 (Pa.
2005) (explaining the important purposes served by Rule 581(I)). However,
in light of our disposition, this error is moot.
3 Appellant complied with the trial court’s order to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial
court filed its previously written but unfiled findings of fact and conclusions
of law, see supra n.2, to satisfy the mandates of Pa.R.A.P. 1925(a).




                                     -3-
J-A30034-18


and Pennsylvania constitutions.”      Appellant’s Brief at 4 (unnecessary

capitalization omitted).

      We consider Appellant’s question mindful of the following.

      Our standard of review in addressing a challenge to the denial of
      a suppression motion is limited to determining whether the
      suppression court’s factual findings are supported by the record
      and whether the legal conclusions drawn from those facts are
      correct.    Because the Commonwealth prevailed before the
      suppression court, we may consider only the evidence of the
      Commonwealth 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 suppression court’s factual findings are
      supported by the record, we are bound by these findings and
      may reverse only if the court’s legal conclusions are erroneous.
      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 conclusions of law of the court[]
      below are subject to our plenary review.

Commonwealth v. Perel, 107 A.3d 185, 188 (Pa. Super. 2014) (quoting

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

      Our jurisprudence delineates interactions between police and citizens

into three levels.

            The first, a “mere encounter,” does not require any level of
      suspicion or carry any official compulsion to stop or respond. The
      second, an “investigative detention,” permits the temporary
      detention of an individual if supported by reasonable suspicion.
      The third is an arrest or custodial detention, which must be
      supported by probable cause.

            In evaluating the level of interaction, courts conduct an
      objective examination of the totality of the surrounding
      circumstances. …




                                    -4-
J-A30034-18


Commonwealth v. Lyles, 97 A.3d 298, 302 (Pa. 2014) (citations omitted).

        In denying Appellant’s suppression motion, the trial court concluded

that Officer Daransky’s activation of his lights and siren to conduct a traffic

stop constituted a mere encounter to check on Appellant’s well-being based

on the 911 dispatch, and therefore Officer Daransky did not need reasonable

suspicion to initiate the stop.        Trial Court Opinion, 4/13/2018, at 3

(unnumbered). On appeal, Appellant argues that the traffic stop amounted

to an investigative detention, requiring reasonable suspicion to justify the

stop.    Appellant’s Brief at 10-11 (citing Commonwealth v. Livingstone,

174 A.3d 609 (Pa. 2017))4. The Commonwealth defers to this Court as to

whether the trial court committed legal error in concluding that the traffic

stop was a mere encounter. Commonwealth’s Brief at 7.

        In Livingstone, which was decided approximately two months before

the trial court’s denial of Appellant’s suppression motion, our Supreme Court

held that the activation of a police vehicle’s lights and sirens to initiate a

traffic stop constitutes an investigative detention.         In so holding, our

Supreme Court explained as follows.

        It is undeniable that emergency lights on police vehicles in this
        Commonwealth serve important safety purposes, including
        ensuring that the police vehicle is visible to traffic, and signaling
        to a stopped motorist that it is a police officer, as opposed to a

4 “While each section of the opinion garnered different votes, we note that
all sections of Livingstone obtained a majority.”      Commonwealth v.
Edwards, 194 A.3d 625, 633 (Pa. Super. 2018).




                                        -5-
J-A30034-18


     potentially dangerous stranger, who is approaching. Moreover,
     we do not doubt that a reasonable person may recognize that a
     police officer might activate his vehicle’s emergency lights for
     safety purposes, as opposed to a command to stop.
     Nevertheless, upon consideration of the realities of everyday life,
     particularly the relationship between ordinary citizens and law
     enforcement, we simply cannot pretend that a reasonable
     person, innocent of any crime, would not interpret the activation
     of emergency lights on a police vehicle as a signal that he or she
     is not free to leave.

174 A.3d at 621 (citation omitted).

     Accordingly, pursuant to Livingstone, once Officer Daransky activated

his vehicle’s lights and siren to initiate the traffic stop, Appellant was

subjected to an investigatory detention. Therefore, the trial court erred in

finding the interaction was a mere encounter. However, our inquiry does not

end there.    We must now determine whether Officer Daransky possessed

reasonable suspicion necessary to stop Appellant’s vehicle.

            An investigatory stop, which subjects a suspect to a stop
     and a period of detention but does not involve such coercive
     conditions as to constitute an arrest, requires a reasonable
     suspicion that criminal activity is afoot. Reasonable suspicion
     depends upon both the content of the information possessed by
     the police and its degree of reliability. Thus, quantity and quality
     of information are considered when assessing the totality of the
     circumstances. If information has a low degree of reliability,
     then more information is required to establish reasonable
     suspicion.

Commonwealth v. Wimbush, 750 A.2d 807, 811 (Pa. 2000) (citations

omitted). “When the police receive unverified information that a person is

engaged in illegal activity, the police may observe the suspect and conduct

an investigation. If police surveillance produces a reasonable suspicion of



                                      -6-
J-A30034-18


criminal conduct, the suspect may be stopped and questioned.” Id. at 811-

12.

       Here, it is undisputed that Officer Daransky did not observe Appellant

commit any motor vehicle violations prior to activating his lights and siren

for a traffic stop. Rather, the traffic stop was initiated for a well-being check

based solely on the 911 dispatch.       Namely, the anonymous5 call to 911

alleged that a male was unconscious behind the steering wheel of a specific

red Corolla in a specific Wendy’s parking lot. Upon arriving on scene, Officer

Daransky did not find any evidence to corroborate this anonymous tip.

Rather, he observed the driver of the identified Corolla to be conscious and

making a right-hand turn out of a GetGo gas station. Thus, there was no

corroboration of the anonymous tipster’s allegations; Officer Daransky’s brief

surveillance in fact refuted the allegations.

       Although essentially abandoned on appeal, the Commonwealth argued

at the suppression hearing that the stop could be justified by Officer

Daransky’s acting pursuant to the public servant exception of the community

caretaking doctrine. Commonwealth’s Brief at 10 (citing N.T., 10/13/2017,

at    13-14).   The   community    caretaking   doctrine   encompasses     three

5 The Commonwealth did not establish at the suppression hearing that the
caller was identified, and on appeal it concedes that “Appellant succinctly
explains in his brief and supplemental brief why the anonymous 911 call
alone was insufficient and that Officer Daransky observed nothing to support
the information from the call.” Commonwealth’s Brief at 10 (emphasis
added; unnecessary capitalization omitted).




                                      -7-
J-A30034-18


exceptions:       “the     emergency       aid   exception;     the    automobile

impoundment/inventory exception; and the public servant exception[.]”

Livingstone, 174 A.3d at 627-28.           In Livingstone, our Supreme Court

recognized that “police officers engage in a myriad of activities that ensure

the safety and welfare of our Commonwealth’s citizens. Indeed, we want to

encourage such laudable activity. However, even community caretaking

activity   must   be     performed   in   accordance   with   Fourth   Amendment

protections.” 174 A.3d at 629. As such, the Court held that “in order for the

public servant exception of the community caretaking doctrine to apply,

police officers must be able to point to specific, objective, and articulable

facts that would reasonably suggest to an experienced officer that a citizen

is in need of assistance.” Id. at 634.

      Based on the foregoing, we conclude that any perceived reason to

check on the well-being of an unconscious individual was nullified upon

Officer Daransky observing that Appellant was conscious and driving without

committing any motor vehicle violations. Simply stated, there were no facts

that Officer Daransky could point to suggesting that Appellant was in need of

assistance.

      As well-intentioned as Officer Daransky’s motives may have been,

based upon our review of the record, we conclude that there is no evidence

to support a finding that he possessed the reasonable suspicion necessary to

stop Appellant’s vehicle.      Because he did not possess such reasonable



                                          -8-
J-A30034-18


suspicion, the investigatory detention was illegal, and the trial court erred in

concluding otherwise.     Accordingly, we vacate Appellant’s judgment of

sentence and reverse the order denying the suppression motion.

      Judgment    of   sentence   vacated.    Order   reversed.     Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary




Date: 2/7/2019




                                     -9-
