J-S63024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  :   IN THE SUPERIOR COURT OF
                                                  :        PENNSYLVANIA
                                                  :
                v.                                :
                                                  :
                                                  :
    REBECCA LYNN THIMONS                          :
                                                  :
                       Appellant                  :   No. 396 WDA 2018

             Appeal from the Judgment of Sentence March 8, 2018
      In the Court of Common Pleas of Butler County Criminal Division at
                       No(s): CP-10-CR-0002708-2016

BEFORE:      OTT, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY MURRAY, J.:                                 FILED OCTOBER 26, 2018

       Rebecca Lynn Thimons (Appellant) appeals from the judgment of

sentence imposed following her convictions of driving under the influence of

alcohol (DUI) – general impairment, DUI – highest rate of alcohol, driving

while operating privilege is suspended or revoked, and driving with an open

alcoholic beverage container.1 Appellant challenges the trial court’s denial of

her pre-trial suppression motion.              After careful consideration, we vacate

Appellant’s judgment of sentence, reverse the order denying her suppression

motion, and remand for further proceedings.

       The trial court summarized the facts underlying Appellant’s arrest as

follows:

         Officer [Christopher] Kopas [(Officer Kopas)] testified that on
       November 6, 2016, at approximately 1:09 a.m., he was checking
____________________________________________


1   75 Pa.C.S.A. §§ 3801(a)(1), (c), 1543(b)(1.1)(i), 3809(a).
____________________________________
* Former Justice specially assigned to the Superior Court.
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     the businesses located on Sharberry Lane in Adams Township. He
     defined a business check as looking for suspicious activity in and
     around businesses that are closed for the day. After Officer Kopas
     completed a business check of Luciano’s restaurant, he continued
     west on Sharberry Lane to the Lightening Bug business when he
     observed a gold Buick SUV traveling north from behind the back
     of the business. As the officer entered the Lightening Bug parking
     lot, the gold SUV turned towards the front of the building and into
     a parking space. Officer Kopas decided to check on the well-being
     of the SUV driver and pulled into a parking space behind the SUV.
     Officer Kopas activated the red and blue cruise lighting system.
     He was patrolling alone that day and informed dispatch of his
     location. He approached the SUV and while talking with the driver,
     [Appellant], he detected indications of alcoholic beverage
     ingestion and impairment. Officer Kopas asked for her driver’s
     license to which [Appellant] replied that she did not have her
     license. Officer Kopas asked [Appellant] for her name and date of
     birth. In the meantime, Officer Jason Giallorenzo arrived as
     backup assistance and informed Officer Kopas that [Appellant]
     was a DUI[-]suspended driver.

        Officer Kopas testified that during this interaction, he was
     standing next to the open window of [Appellant]’s driver’s door.
     He stated that he parked the police car in a space behind
     [Appellant]’s SUV and that she was not blocked in.            Next,
     [Appellant] performed three (3) standardized field sobriety tests,
     the horizontal gaze nystagmus (HGN), the walk and turn, and the
     one-leg stand. The results of the HGN were inconclusive and the
     other two tests indicated impairment. The PBT (portable breath
     test) indicated alcohol consumption. [Appellant] was placed
     under arrest for suspicion of driving under the influence and asked
     to submit to a blood test. [Appellant] said sure. [Appellant] was
     transported to UPMC Cranberry for a blood draw. Officer Kopas
     testified that because [Appellant] consented to the blood test, he
     did not present nor read the information contained in the Penn
     DOT DL-26 form. At the hospital, [Appellant] was presented with
     the UPMC consent form, [Appellant]’ Exhibit “A,” which was signed
     by [Appellant] indicating that she consented to the blood draw.

Memorandum Opinion and Order, 8/11/17, at 2.

     On December 1, 2016, the Commonwealth filed a criminal complaint

charging Appellant with (DUI) – general impairment, DUI – highest rate of

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alcohol, driving while operating privilege is suspended or revoked, and driving

with an open alcoholic beverage container. On May 22, 2017, Appellant filed

a pre-trial motion to suppress. Appellant alleged that Officer Kopas conducted

an investigatory detention and lacked the reasonable suspicion necessary to

do so. Additionally, Appellant asserted that the evidence obtained from her

blood draw was inadmissible because the police did not inform her of her right

to refuse a warrantless blood draw. On June 16, 2017, the trial court held a

hearing on Appellant’s suppression motion.      On August 11, 2017, the trial

court denied the motion.

      On January 26, 2018, the trial court found Appellant guilty of all charges.

On March 8, 2018, the trial court sentenced Appellant to 60 months of

intermediate punishment, with the first 90 days to be served on house arrest,

a consecutive term of 90 days of electronic monitoring, and a 12-month

license suspension.   The following day, Appellant timely appealed to this

Court. Both the trial court and Appellant have complied with Pennsylvania

Rule of Appellate Procedure 1925.

      On appeal, Appellant presents the following issues for review:

      1. WHETHER THE TRIAL COURT ERRED, AS A MATTER OF LAW,
      WHEN IT DENIED APPELLANT’S OMNIBUS PRE[-]TRIAL MOTION
      CHALLENGING THE LEGALITY OF HER TRAFFIC STOP AND
      SUBSEQUENT DETENTION BY LAW ENFORCEMENT?

      2. WHETHER THE TRIAL COURT ERRED, AS A MATTER OF LAW,
      WHEN IT DENIED APPELLANT’S OMNIBUS PRE[-]TRIAL MOTION
      CHALLENGING THE LEGALITY OF HER BLOOD DRAW BASED UPON
      LACK OF KNOWING CONSENT?


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Appellant’s Brief at 8.

      Our standard of review is as follows:

      [An appellate court’s] 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, [the appellate court] is bound by [those]
      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 courts below are subject to [ ] plenary review.

Commonwealth v. Mason, 130 A.3d 148, 151-52 (Pa. Super. 2015)

(quotations and citations omitted).

      First, Appellant argues that her traffic stop was illegal. Appellant asserts

that her traffic stop was an investigatory detention, as opposed to a mere

encounter, because Officer Kopas pulled his patrol vehicle behind her car and

activated the vehicle’s lights. Appellant maintains that the activation of the

police vehicle’s lights indicated that she was detained for purposes of the

Fourth Amendment. Consequently, Appellant contends that because he was

unable to articulate at the suppression hearing any specific facts indicating

that she was involved in criminal activity, Officer Kopas lacked the reasonable

suspicion necessary to conduct an investigatory detention. In response, the


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Commonwealth argues that Officer Kopas had reasonable suspicion to stop

Appellant’s vehicle.

       “The Fourth Amendment of the Federal Constitution and Article I,

Section   8   of   the   Pennsylvania    Constitution    protect   individuals   from

unreasonable searches and seizures.” Commonwealth v. Walls, 53 A.3d

889, 892 (Pa. Super. 2012). “To secure the right of citizens to be free from

such   [unreasonable]      intrusions,   courts   in    Pennsylvania   require    law

enforcement officers to demonstrate ascending levels of suspicion to justify

their interactions with citizens as those interactions become more intrusive.”

Commonwealth v. Pratt, 930 A.2d 561, 563 (Pa. Super. 2007). Courts in

this Commonwealth have recognized three types of interactions between the

police and a citizen:     a mere encounter, an investigative detention, and a

custodial detention.

       A mere encounter between police and a citizen need not be
       supported by any level of suspicion, and carr[ies] no official
       compulsion on the part of the citizen to stop or to respond. An
       investigatory stop, which subjects a suspect to a stop and a period
       of detention . . . requires a reasonable suspicion that criminal
       activity is afoot. A custodial search is an arrest and must be
       supported by probable cause.

Commonwealth v. Newsome, 170 A.3d 1151, 1154 (Pa. Super. 2017).

       This Court has explained that when determining whether an interaction

is a mere encounter or an investigative detention:

       the focus of our inquiry is on whether a seizure of the person has
       occurred. Within this context, our courts employ the following
       objective standard to discern whether a person has been seized:
       [w]hether, under all the circumstances surrounding the incident

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     at issue, a reasonable person would believe he was free to leave.
     Thus, a seizure does not occur simply because a police officer
     approaches an individual and asks a few questions.

Commonwealth v. Cooper, 994 A.2d 589, 592 (Pa. Super. 2010) (citations,

quotation marks, and ellipses omitted).

     In support of her claim that the traffic stop was an investigatory

detention and not a mere encounter, Appellant relies on our Supreme Court’s

decision in Commonwealth v. Livingstone, 174 A.3d 609 (Pa. 2017), which

the Supreme Court decided approximately three months after the trial court’s

denial of Appellant’s suppression motion in this case. In Livingstone, the

Supreme Court held that the activation of a police car’s lights upon pulling

alongside a vehicle indicated that the individuals inside the vehicle were

“seized and subjected to an investigative detention.” Id. at 625.

     In so holding, our Supreme Court explained:

         To determine whether a citizen’s movement has been
     restrained, courts must consider the totality of the circumstances,
     “with no single factor dictating the ultimate conclusion as to
     whether a seizure has occurred.” [Commonwealth v. Strickler,
     757 A.2d 884, 890 (Pa. 2000)].             In [United States v.
     Mendenhall, 446 U.S. 544 (1980)], the high Court indicated that
     the following factors suggest a seizure occurred: “the threatening
     presence of several officers, the display of a weapon by an officer,
     some physical touching of the person of the citizen, or the use of
     language or tone of voice indicating that compliance with the
     officer’s request might be compelled.” [Id.] at 554[.] The Court
     explained that, absent evidence of the factors identified above,
     “otherwise inoffensive contact between a member of the public
     and the police cannot, as a matter of law, amount to a seizure of
     that person.” Id. at 555[.]

        Similarly, in Commonwealth v. Jones, this Court explained
     that, in order to determine when a “stop” has occurred, “subtle

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     factors as the demeanor of the police officer, the location of the
     confrontation, the manner of expression used by the officer in
     addressing the citizen, and the content of the interrogatories or
     statements,” must be considered. []378 A.2d 835, 839-40 (1977)
     (recognizing that, while a police uniform is a symbol of authority,
     a uniform is not, in and of itself, a sufficient exercise of force to
     render an interaction between an officer and a citizen a “stop”).
     The pivotal inquiry is whether, in light of the facts and
     circumstances identified above, “a reasonable man, innocent of
     any crime, would have thought (he was being restrained) had he
     been in the defendant’s shoes.” Id. at 840 (citation omitted). The
     Jones/Mendenhall standard has been consistently followed in
     Pennsylvania in determining whether the conduct of the police
     amounts to a seizure, or whether there is simply a mere encounter
     between citizen and police officer. Commonwealth v. Matos, []
     672 A.2d 769, 774 ([Pa.] 1996).

         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
     potentially dangerous stranger, who is approaching.              See
     [Commonwealth v. Johonoson, 844 A.2d 556, 562 (Pa. Super.
     2004)]. 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.

         Indeed, the Pennsylvania Driver’s Manual (“PDM”) instructs
     drivers how to proceed “if [they] are stopped by police.” The PDM
     first provides: “You will know a police officer wants you to pull
     over when he or she activates the flashing red and blue lights on
     top of the police vehicle.” Pa. Driver’s Manual at 78, available at
     http://www.dot.state.pa.us/Public/DVSPubsForms/BDL/BDLManu
     als. The PDM further “recommends” that drivers follow certain
     procedures “[a]nytime a police vehicle stops behind you.” Id.
     Those procedures include turning off the engine and radio, rolling
     down a window to enable communication with the officer, limiting
     their movements and the movements of passengers; placing their

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      hands on the steering wheel; keeping the vehicle doors closed and
      remaining inside the vehicle; and keeping their seatbelt fastened.
      Id. If these instructions do not explicitly instruct motorists who
      are already stopped on the side of the road that they are not free
      to leave when a police vehicle, with its emergency lights activated,
      pulls alongside their vehicle, we conclude that it is eminently
      reasonable that a motorist would believe he or she is not free to
      leave under these circumstances.

         Moreover, pursuant to Pennsylvania’s Motor Vehicle Code, a
      driver of a motor vehicle “who willfully fails or refuses to bring his
      vehicle to a stop, or who otherwise flees or attempts to elude a
      pursuing police officer, when given a visual and audible signal to
      bring the vehicle to a stop,” may be convicted of a second-degree
      misdemeanor. 75 Pa.C.S. § 3733(a), (a.2). A police officer’s
      signal may be “by hand, voice, emergency lights or siren.” Id. §
      3733(b).

                                 *      *     *

         The fact that motorists risk being charged with violations of the
      Motor Vehicle Code if they incorrectly assume they are free to
      leave after a patrol car, with its emergency lights activated, has
      pulled behind or alongside of them, further supports our
      conclusion that a reasonable person in Appellant’s shoes would
      not have felt free to leave.

Id. at 621-22.

      Here, there is no dispute that not only did Officer Kopas pull his patrol

vehicle behind Appellant’s parked car, but he did so with his lights activated.

See N.T., 6/16/17, at 6.         Indeed, the Commonwealth concedes that

Appellant’s interaction with Officer Kopas was not a mere encounter.

Commonwealth’s Brief at 3. We therefore conclude that Officer Kopas’ stop

of Appellant’s vehicle constituted an investigatory detention. Accordingly, we

must determine whether Officer Kopas possessed reasonable suspicion

necessary to stop Appellant’s vehicle. See Cooper, 994 A.2d at 592.

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       When evaluating the legality of investigative detentions, Pennsylvania

has adopted the holding of Terry v. Ohio, 392 U.S. 1 (1968), where the

United States Supreme Court held that police may conduct an investigatory

detention if they have reasonable suspicion that criminal activity is afoot. In

re: D.M., 781 A.2d 1161, 1163 (Pa. 2001). These encounters with police are

commonly known as Terry stops. In order to prove reasonable suspicion,

“the police officer must be able to point to specific and articulable facts and

reasonable inferences drawn from those facts in light of the officer’s

experience.” Commonwealth v. Cook, 735 A.2d 673, 677 (Pa. 1999). “The

determination of whether an officer had reasonable suspicion that criminality

was afoot so as to justify an investigatory detention is an objective one, which

must    be   considered   in   light   of    the   totality   of   the   circumstances.”

Commonwealth v. Walls, 53 A.3d 889, 893 (Pa. Super. 2012).

       Based on our review of the certified record on appeal, including the

transcript of Appellant’s suppression hearing, we conclude that there is no

evidence to support a finding that Officer Kopas possessed the reasonable

suspicion necessary to stop Appellant’s vehicle. Officer Kopas explained his

decision to stop Appellant’s vehicle as follows:

       [Officer Kopas]: After I completed performing a business check
       of Luciano’s Restaurant, I proceeded west on Sharberry Lane. As
       I’m coming down the hill between that business and what’s called
       the Lightning Bug, which is just, like, a family fun center, like an
       arcade, I observed a gold Buick Rendezvous SUV traveling north
       in that parking lot coming from the back side of that business. As
       I’m proceeding down to the driveway area, or the entrance, that
       vehicle turns towards the front of the building and pulls into a

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      parking space. So I check on the well-being of that person and to
      kind of check the area, if there is anything that anybody would
      need help with.

      Obviously, no one is usually there at 1:09 in the morning, so
      something may be off. So I did pull into a parking space behind
      the vehicle.

N.T., 6/16/17, at 5-6.

      Officer Kopas’ testimony points to no specific or articulable facts

indicating that he possessed the reasonable belief that criminality was afoot.

Officer Kopas did not identify any crime (e.g., DUI, possession or distribution

of controlled substances, burglary, etc.) that he believed Appellant may have

committed or may have been in the process of committing. All the record

indicates is that at approximately 1:00 a.m., Appellant drove her vehicle

behind a closed business and parked her car in an empty parking lot in front

of that business. Moreover, the Commonwealth, in its appellate brief, did not

identify any crime that Officer Kopas could have reasonably believed Appellant

had committed. The Commonwealth only asserts that, because Appellant was

in a parking lot late at night in front of a closed business, Officer Kopas “had

reason to suspect that something was not right.” Commonwealth Brief at 6.

This does not amount to reasonable suspicion.

      The record reflects that Officer Kopas and Appellant were engaged in a

mere encounter:

      [Defense Counsel]: So when you came in and you just thought
      that a car in the lot at that time was an awkward situation for you
      to encounter, you wanted to do, I think you said, a well-being
      check, right?

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      [Officer Kopas]: Yes. With a vehicle coming from the back side
      of the business, then parking in front of that business at that hour,
      I wanted to make sure everything was okay.

                                  *     *      *

      [Defense Counsel]: And you, at that time you still considered this
      a welfare check?

      [Officer Kopas]: Correct. Yes. It was a mere encounter aspect.

      [Defense Counsel]: And then nothing until you reached the
      driver’s side window when you encountered [Appellant]? There
      was no other indication of anything else occurring, correct?

      [Officer Kopas]: No, nothing I had detected.

N.T., 6/6/17, at 15.

      Thus, although Officer Kopas may have intended for his interaction with

Appellant to begin as a mere encounter, Livingstone instructs that a police

officer must have reasonable suspicion to approach a parked vehicle with the

patrol car’s lights activated.   Because he did not possess such reasonable

suspicion, Officer Kopas’ stop of Appellant’s vehicle was illegal.

      In sum, and consonant with Livingstone, we conclude that Officer

Kopas’ stop of Appellant’s vehicle was illegal.    Thus, we need not address

Appellant’s claim that she did not knowingly consent to the blood draw. We

therefore vacate Appellant’s judgment of sentence, reverse the order denying

the suppression motion, and remand for further proceedings.

      Judgment of sentence vacated.         Suppression order reversed.       Case

remanded. Jurisdiction relinquished.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/26/2018




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