J. A03031/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                            Appellee        :
                                            :
                    v.                      :
                                            :
DAVID CARL KESLER,                          :
                                            :
                            Appellant       :     No. 1027 MDA 2014


              Appeal from the Judgment of Sentence June 5, 2014
                 In the Court of Common Pleas of Perry County
               Criminal Division No(s).: CP-50-CR-0000148-2013

BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED MARCH 09, 2015

        Appellant, David Carl Kesler, appeals from the judgment of sentence

entered in the Perry County Court of Common Pleas following his conviction

for driving under the influence of alcohol (DUI)—high rate of alcohol.1

Appellant claims the trial court erred in concluding the initial traffic stop was

justified by reasonable suspicion. We affirm.

        The trial court set forth the background to this appeal.

           [Pennsylvania State Trooper Scott A. Roussell] testified
           that he was called to the scene of a bar fight at White
           Oaks Bar. Upon arrival, the Trooper was informed that
           there was a fight involving a group of people on
           motorcycles. Some had fled prior to the Trooper’s arrival

*
    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S. § 3802(b).
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         however, eyewitnesses described the motorcycles and the
         individuals driving them. The Trooper met with the victim
         in this incident and he stepped outside to show the
         Trooper damage to his motorcycle seat from a cigarette
         burn. At that point, the Trooper stated that people [o]n
         motorcycles began leaving the area.

Trial Court Op., 8/28/14, at 2.

      Our review of the suppression record reveals the following details

relevant to this appeal. While Trooper Roussell was outside the bar with the

victim, he observed three motorcycles leaving the area. N.T., 10/23/13, at

8, 17. According to the Trooper, the victim “pointed out that looks like some

of the guys that were involved in the fight.” Id. at 18. The Trooper yelled

and attempted to stop the drivers by waving his flashlight. Id. at 8, 17-18.

One of the three motorcyclists stopped.               Id. at 17.     The other two

motorcyclists made a left turn, went across the grass of a yard of a nearby

trailer to the roadway, and “didn’t stop to yield to any possible traffic on the

road.” Id. at 11, 17.

      The Trooper pursued the two motorcycles in a marked vehicle and

activated the emergency lights and sirens.             Id. at 8, 18.       One of the

motorcyclists, later identified as Appellant, pulled over to the side of the

road. The Trooper drove by him to pursue the other motorcycle, which fit

the   description   of   an   individual    or   vehicle   he   obtained   during   his

investigation of the bar fight.      Id. at 8.     The Trooper stopped the other

motorcyclist at the intersection of Routes 34 and 274, approximately one-

half mile from where Appellant initially stopped. Id. The Trooper testified


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he did not observe Appellant commit moving violations while pursuing the

two motorcycles.

      According to the Trooper, Appellant then drove his motorcycle to the

intersection and stopped. Id. at 8. The Trooper testified, “So at that point I

[waved] him over, because I wanted to see, you know, who was at the bar.”

Id. at 9. He then told Appellant to “stay there” because he was talking to

the other motorcyclist. Id. at 10. He positioned the two close to each other

so he “could keep an eye on them” while waiting for his backup. Id. at 21.

      The Trooper went back and forth between Appellant and the driver of

the other motorcycle.     Id. at 10. During these interactions, he noticed the

other motorcyclist had a five-to-six inch long laceration on his forehead and

Appellant “had a strong odor of alcohol coming from him[,]” “[h]is speech

was   slurred[,]”   “he   was   actually   staggering   when   he   got   off   his

motorcycle[,]” and “[h]e was acting very slow and sluggish.” Id. at 10, 12.

The Trooper checked Appellant’s driver’s license and registration, and the

latter was expired. Id. at 21, 24.

      When backup arrived, another trooper drove Appellant back to the bar,

where it was determined that he was not involved in the fight.            At some

point, Trooper Roussell administered a horizontal gaze nystagmus test on

Appellant, which “showed six out of six indicators[,]” and took a preliminary

breathalyzer test, which indicated Appellant had a blood alcohol content of




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0.138%.2 Id. at 13. The Trooper arrested Appellant for DUI. Appellant was

transported to a police station, and a blood test was performed. The blood

test returned with a blood alcohol content reading of 0.144%.

        Appellant was charged with several counts of DUI, registration and

certificate of title required, and several traffic violations. Appellant filed an

omnibus pretrial motion on September 10, 2013, asserting, inter alia, that

he was stopped without reasonable suspicion and requesting the suppression

of all evidence.    The trial court held a hearing on October 23, 2013, and

denied Appellant’s suppression motion.

        Appellant proceeded to a nonjury trial on April 15, 2014, at which he

was found guilty of DUI—high rate. The court, on June 5, 2014, sentenced

Appellant to serve thirty days to six months’ imprisonment and pay a

mandatory fine of $750. Appellant filed a timely appeal and complied with

the court’s order to file a Pa.R.A.P. 1925(b) statement.3

        Appellant, in the brief filed in support of this appeal, asserts the trial

court erred in denying his suppression motion.4          He claims the Trooper


2
  The Trooper’s testimony did not indicate whether he conducted the field
tests at the intersection where he stopped the two motorcycles or the
parking lot of the bar. However, the Trooper stated he did not administer
certain tests due, in part, to the gravel in a parking lot. N.T. at 13.
3
  The Honorable Keith B. Quigley presided at the suppression hearing.
President Judge Kathy A. Morrow presided at trial and sentencing. Judge
Morrow authored the court’s Pa.R.A.P. 1925(a) opinion.
4
    Appellant presented the following three questions for review:



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lacked reasonable suspicion to conduct a traffic stop.5 In support, he argues

Trooper Roussell (1) pursued him and the other motorcyclist on a “hunch”

that they were involved in the fight at the bar, (2) did not observe him

commit a moving violation when following him, and (3) initially drove past




        Did the officer have the requisite reasonable articulable
        suspicion upon which to base the traffic stop of Appellant’s
        motorcycle?

        Did the police have sufficient reasonable articulable
        suspicion to justify [Appellant’s] detention, and conduct a
        D.U.I. investigation?

        Did the officer possess valid probable cause to arrest
        [Appellant]?

Appellant’s Brief at 6. However, Appellant set forth only one argument that
the trial court erred in finding reasonable suspicion to stop him and all
evidence should have been suppressed as “fruits of a poisoned tree.” Id. at
10-13. Therefore, we address Appellant’s first question presented, but not
the last two questions, which have been abandoned in this appeal. See
Commonwealth v. Bullock, 948 A.2d 818, 823 (Pa. Super. 2008).
5
  We note the Commonwealth asserts the interaction between Appellant and
the Trooper was a “mere encounter” because Appellant voluntarily came to
stop at the intersection and the Trooper merely waved him over to where he
had stopped the other motorcycle. Commonwealth’s Brief at 5-6. However,
the Trooper had a marked police vehicle with its emergency lights activated.
Additionally, the Trooper commanded Appellant to “stay there” because he
was talking to the other motorcyclist, and positioned the two motorcycles so
he “could keep an eye on them.” N.T. at 10. There was no indication the
Trooper made his observations regarding Appellant’s odor or demeanor
before ordering him to remain at the scene of the stop and positioning his
vehicle. Therefore, we disagree with the Commonwealth’s characterization
of the underlying interaction as a mere encounter.           See generally
Commonwealth v. Hill, 874 A.2d 1214, 1217, 1219 (Pa. Super. 2005)
(discussing mere encounter versus traffic stop requiring reasonable
suspicion).



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him and stopped the other motorcycle. Appellant’s Brief at 11. No relief is

due.

       Our standard of review and the legal principles relevant to this appeal

are as follows:

            [I]n addressing a challenge to a trial court’s denial of a
         suppression motion [we are] limited to determining
         whether the factual findings are supported by the record
         and whether the legal conclusions drawn from those facts
         are correct. Since the [Commonwealth] prevailed in 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 record
         supports the factual findings of the trial court, we are
         bound by those facts and may reverse only if the legal
         conclusions drawn therefrom are in error.

            [Initially, we] observe that the forcible stop of a vehicle
         constitutes an investigative detention such that there must
         be reasonable suspicion that illegal activity is occurring. . .
         .

             Reasonable 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.

             To have reasonable suspicion, police officers need not
         personally observe the illegal or suspicious conduct, but
         may rely upon the information of third parties, including
         ‘tips’ from citizens. Naturally, if a tip has a relatively low
         degree of reliability, more information will be required to


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        establish the requisite quantum of suspicion than would be
        required if the tip were more reliable. This Court has
        examined the requirements surrounding reasonable
        suspicion for automobile stops emanating from information
        provided by a tipster and has explained:

           Reasonable suspicion, like probable cause, is
           dependent upon both the content of information
           possessed by police and its degree of reliability.
           Both factors—quantity and quality—are considered in
           the ‘totality of the circumstances—the whole picture,’
           that must be taken into account when evaluating
           whether there is reasonable suspicion. Thus, if a tip
           has a relatively low degree of reliability, more
           information will be required to establish the requisite
           quantum of suspicion than would be required if the
           tip were reliable.

                                 *    *    *

             Indeed, identified citizens who report their observations
        of criminal activity to police are assumed to be
        trustworthy, in the absence of special circumstances, since
        a known informant places himself at risk of prosecution for
        filing a false claim if the tip is untrue, whereas an unknown
        informant faces no such risk. 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.

Commonwealth v. Washington, 63 A.3d 797, 802-03 (Pa. Super. 2013).

     Instantly, the victim, while in the presence of Trooper Roussell,

identified the three motorcycles as being suspects in the underlying fight.

See id. Additionally, Appellant’s failure to stop when the Trooper signaled



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him at the bar and the manner in which he drove away from the bar

bolstered the Trooper’s belief that the two drivers were involved in the fight.

In light of these circumstances, we agree with the trial court that the

Trooper had adequate reasonable suspicion to stop Appellant’s motorcycle.

Accordingly, Appellant’s claim warrants no appellate relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/9/2015




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