J-A03040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellant

                    v.

DENAYA DAVIS

                         Appellee                    No. 446 EDA 2015


                   Appeal from the Order March 4, 2014
      In the Court of Common Pleas of Municipal Court of Philadelphia
                    At No(s): MC-51-CR-0031625-2013


BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J.

MEMORANDUM BY GANTMAN, P.J.:                       FILED MARCH 30, 2016

      Appellant, the Commonwealth of Pennsylvania, appeals from the order

of the Philadelphia County Court of Common Pleas, which affirmed the

suppression order entered in the Municipal Court in favor of Appellee,

Denaya Davis. We reverse and remand for further proceedings.

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

At around 8:40 p.m. on August 14, 2013, Mattie Scott was driving

westbound on Larchwood Avenue when she approached the intersection at

61st Street, which had a four-way stop sign.      Ms. Scott stopped at the

intersection.   As Ms. Scott started to make a left turn, Appellee drove

through the intersection eastbound on Larchwood Avenue without stopping.

Ms. Scott’s vehicle struck Appellee’s vehicle. Appellee exited her vehicle and

began to jump up and down, screaming that Ms. Scott had hit and damaged
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Appellee’s car. Ms. Scott’s car was damaged beyond repair. Minutes later,

Officer Nicholson arrived at the scene in response to a radio call. The officer

first spoke to Ms. Scott and inquired if she needed medical attention.

Witnesses to the accident then pointed Officer Nicholson to a van

approximately thirty feet away. Appellee was sitting in the passenger seat

of the van. Officer Nicholson approached the van and asked Appellee if she

needed medical attention. Appellee said she was fine and would go to the

hospital on her own. Officer Nicholson then asked Appellee to exit the van

so he could view her driver’s license, registration, and proof of insurance for

his accident report. As he spoke to Appellee, Officer Nicholson noticed she

would stare off into space or not answer some of his questions.       Appellee

also had glassy eyes and slurred speech.       Based on his observations of

Appellee’s condition, Officer Nicholson asked if she had been drinking and

insisted she receive medical attention. As Officer Nicholson continued to talk

to Appellee, he detected a strong odor of alcohol on her breath. Appellee

finally admitted she had attended a happy hour event where she drank three

shots of liquor and a beer. Officer Nicholson then called for a police wagon,

and Appellee was placed under arrest and subjected to a breath test.

      The Commonwealth charged Appellee with one (1) count of driving

under influence of alcohol (“DUI”), 75 Pa.C.S.A. § 3802(a)(1). Appellee filed

a motion to suppress all evidence gathered following Officer Nicholson’s

“stop” of Appellee. On October 24, 2013, the Municipal Court held a hearing


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and granted Appellee’s motion to suppress.              The Commonwealth timely

appealed to the Court of Common Pleas (“CCP”) on November 22, 2013. On

March 4, 2014, the CCP affirmed the suppression order. On April 3, 2014,

the Commonwealth timely filed a notice of appeal and a voluntary concise

statement of errors complained of on appeal per Pa.R.A.P. 1925(b).1

       The Commonwealth raises the following issue for our review:

          DID THE [CCP], SITTING AS AN APPELLATE COURT, ERR
          IN AFFIRMING THE SUPPRESSION ORDER OF THE
          MUNICIPAL COURT, WHICH ERRONEOUSLY HELD THAT
          [APPELLEE] HAD BEEN PLACED UNDER SUPPOSED ARREST
          WITHOUT PROBABLE CAUSE BECAUSE A POLICE OFFICER
          INVESTIGATING A CAR ACCIDENT IN WHICH [APPELLEE]
          HAD BEEN INVOLVED AS A DRIVER SPOKE TO [APPELLEE]
          AND ASKED FOR HER LICENSE AND REGISTRATION?

(Commonwealth’s Brief at 4).

       The Commonwealth argues Officer Nicholson’s initial interaction with

Appellee required no suspicion of criminal activity.            The Commonwealth

contends Officer Nicholson lawfully approached and questioned Appellee as

part of the officer’s duty to render aid in the aftermath of the accident. The

Commonwealth claims Officer Nicholson approached Appellee to determine if

she   needed      medical    attention,    not   to   investigate   a   crime.   The

Commonwealth asserts Officer Nicholson initially was concerned that

Appellee had suffered a traumatic brain injury because she had glassy eyes

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1
  The Commonwealth certified that the suppression order terminated or
substantially handicapped the prosecution, pursuant to Pa.R.A.P. 311(d).



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and did not promptly respond to the officer’s questions. The Commonwealth

submits Officer Nicholson then observed other signs indicating that Appellee

had been drinking, including slurred speech and the odor of alcohol on her

breath. The Commonwealth maintains Appellee admitted she had consumed

several alcoholic beverages. The Commonwealth contends Officer Nicholson

had probable cause to arrest Appellee at that point.       The Commonwealth

disputes the CCP’s finding that a seizure or arrest occurred at any time

before Appellee was placed in the police vehicle.         The Commonwealth

asserts   Officer   Nicholson   had   reasonable   suspicion   to   conduct   an

investigative detention, in any event, because Appellee had wandered away

from the accident scene, and it was clear one or both drivers had

disregarded a stop sign and caused a severe collision. The Commonwealth

concludes this Court should reverse the suppression order and remand for

further proceedings. We agree.

      We review an order granting a motion to suppress according to the

following principles:

          [We] consider only the evidence from the defendant’s
          witnesses together with the evidence of the prosecution
          that, when read in the context of the entire record,
          remains uncontradicted.       As long as there is some
          evidence to support them, we are bound by the
          suppression court’s findings of fact. Most importantly, we
          are not at liberty to reject a finding of fact which is based
          on credibility.

          The suppression court’s conclusions of law, however, are
          not binding on an appellate court, whose duty is to
          determine if the suppression court properly applied the law

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           to the facts.

Commonwealth v. Goldsborough, 31 A.3d 299, 305 (Pa.Super. 2011),

appeal denied, 616 Pa. 651, 49 A.3d 442 (2012) (internal citations and

quotation marks omitted).

        Contacts between the police and citizenry fall within three general

classifications:

           The first [level of interaction] 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. Bryant, 866 A.2d 1143, 1146 (Pa.Super. 2005), appeal

denied, 583 Pa. 668, 876 A.2d 392 (2005). To determine if an interaction

rises to the level of an investigative detention, i.e., a Terry2 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. Jones, 874 A.2d 108,

116 (Pa.Super. 2005) (quoting Commonwealth v. Stevenson, 832 A.2d

1123, 1127 (Pa.Super. 2003)). See also Commonwealth v. Conte, 931

A.2d 690, 691, 693 (Pa.Super. 2007) (characterizing as “mere encounter”
____________________________________________


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



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initial interaction between officer and defendant, where officer pulled up

behind defendant’s disabled vehicle on side of road, activated patrol car’s

overhead lights, walked toward defendant, and asked him what had

happened and if he needed assistance; stating “our expectation as a society

is that a police officer’s duty to serve and protect the community he…patrols

extends beyond enforcement of the Crimes Code or Motor Vehicle Code and

includes helping citizens evidently in distress”).

      Police must have reasonable suspicion that a person is engaged in

unlawful activity before subjecting that person to an investigative detention.

Commonwealth v. Cottman, 764 A.2d 595 (Pa.Super. 2000).

         [T]o establish grounds for reasonable suspicion, the officer
         must articulate specific observations which, in conjunction
         with     reasonable    inferences   derived     from  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. The
         question of whether reasonable suspicion existed at the
         time [the officer conducted the stop] must be answered by
         examining the totality of the circumstances to determine
         whether the officer who initiated the stop had a
         particularized and objective basis for suspecting the
         individual stopped. 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
         the [stop] warrant a [person] of reasonable caution in the
         belief that the action taken was appropriate.

Commonwealth v. Basinger, 982 A.2d 121, 125 (Pa.Super. 2009)

(internal citations and quotation marks omitted).

      “Probable cause justifying a warrantless arrest is determined by the

‘totality of the circumstances.’”   Commonwealth v. Banks, 540 Pa. 453,

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455, 658 A.2d 752, 752 (1995).

         Probable cause is made out when the facts and
         circumstances which are within the knowledge of the
         officer at the time of the arrest, and of which he has
         reasonably trustworthy information, are sufficient to
         warrant a [person] of reasonable caution in the belief that
         the suspect has committed or is committing a crime. The
         question we ask is not whether the officer’s belief was
         correct or more likely true than false. Rather, we require
         only a probability, and not a prima facie showing, of
         criminal activity.

Commonwealth v. Rosha Charles Williams, 2 A.3d 611, 616 (Pa.Super.

2010) (en banc), appeal denied, 610 Pa. 585, 19 A.3d 1051 (2011) (quoting

Commonwealth v. Thompson, 604 Pa. 198, 203, 985 A.2d 928, 931

(2009)) (internal citations and quotation marks omitted) (emphasis in

original). “Furthermore, a police officer may utilize both his experience and

personal observations to render an opinion as to whether a person is

intoxicated.”     Commonwealth v. Hope L. Williams, 941 A.2d 14, 27

(Pa.Super. 2008) (en banc). See also Commonwealth v. Funk, 385 A.2d

995 (Pa.Super. 1978) (en banc) (stating police had probable cause to arrest

defendant on suspicion of DUI where defendant had been in serious car

accident, his breath reeked of alcohol, and he was in stupor consistent with

either intoxication or concussion).

      Instantly, Appellee was involved in a car accident in the middle of a

four-way stop intersection. The accident caused significant damage to the

vehicles involved.    Officer Nicholson arrived at the scene in response to a

radio call.     After speaking to the other driver, Officer Nicholson walked

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toward Appellee, whom witnesses indicated was sitting in a van parked

approximately thirty feet away.           Officer Nicholson asked Appellee if she

needed medical assistance. The initial interaction between Officer Nicholson

and Appellee required no particular level of suspicion.3 Officer Nicholson was

simply fulfilling his duty to render aid to a driver he had reason to believe

was in distress. See Conte, supra; Bryant, supra. Additionally, Officer

Nicholson’s request for Appellee’s license, registration, and proof of

insurance, was in furtherance of the officer’s duty to create an accident

report and did not trigger an investigative detention of Appellee.       See 75

Pa.C.S.A. § 3744(a) (stating: “The driver of any vehicle involved in an

accident resulting in…damage to any vehicle or other property which is

driven or attended by any person shall give his name, address and the

registration number of the vehicle he is driving, and shall upon request

exhibit his driver’s license and information relating to financial responsibility

to…any police officer at the scene of the accident or who is investigating the

accident”); 75 Pa.C.S.A. § 3746(c) (stating: “Every accident reported to a

police department required in this section shall be investigated by a police

officer who shall provide each driver a signed statement that the accident

was reported”).

____________________________________________


3
  Contrary to the CCP’s determination, no police-initiated traffic stop
occurred. Appellee’s vehicle was stopped by the collision itself, and Appellee
was sitting in another vehicle when Officer Nicholson approached her.



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       As Officer Nicholson continued his interaction with Appellee, he

observed she had glassy eyes, slurred speech, and would stare off into space

or fail to respond to certain questions.         When Officer Nicholson asked

Appellee if she had been drinking, the officer had reasonable suspicion

Appellee was intoxicated, based on the nature of the accident and his

observations of Appellee’s behavior and appearance. See Basinger, supra.

The officer noticed an odor of alcohol on Appellee’s breath, and Appellee

admitted she had consumed several alcoholic drinks.4         Officer Nicholson

then placed Appellee under arrest. At that point, the police had probable

cause to arrest Appellee on suspicion of DUI based on the totality of the

circumstances, including (1) the occurrence of a motor vehicle collision in

the middle of a four-way stop intersection, which suggested at least one

driver was at fault; (2) Appellee’s act of wandering away from the accident

and entering a different vehicle on the side of the road; (3) Officer

Nicholson’s observations of Appellee’s demeanor and physical symptoms;

and (4) Appellee’s admission that she had been drinking alcohol.       Officer

Nicholson did not have to rule out definitively every other possible

explanation for Appellee’s behavior and condition, such as a brain injury, to

establish probable cause.         See Rosha Charles Williams, supra; Funk,
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4
  Although unchallenged in this case, Appellant was not “in custody,” when
she admitted she had consumed several alcoholic drinks, for purposes of
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
See generally Hope L. Williams, supra.



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supra. Accordingly, we reverse the order affirming suppression and remand

the case for further proceedings.

      Order reversed; case remanded for further proceedings. Jurisdiction is

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/30/2016




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