J-A27041-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

VICTORIA LIVINGSTONE

                        Appellant                    No. 1829 WDA 2014


         Appeal from the Judgment of Sentence October 20, 2014
              In the Court of Common Pleas of Erie County
            Criminal Division at No: CP-25-CR-0002750-2013


BEFORE: BOWES, OLSON, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                    FILED DECEMBER 21, 2015

     Appellant, Victoria Livingstone, appeals from the judgment of sentence

of the Court of Common Pleas of Erie County entered October 20, 2014.

Appellant argues the trial court erred in denying her motion to suppress

evidence. For the reasons stated below, we affirm.

     The trial court summarized the relevant background as follows:

     [Appellant] is currently charged with one count each of driving
     under the influence of alcohol, general impairment – incapable of
     safe driving, second offense; driving under the influence, highest
     rate of alcohol, [Blood Alcohol Content] 0.16% or greater,
     second offense; and, careless driving.

     On June 14, 2013, at approximately 9:30 p.m., Pennsylvania
     State Police Trooper Jeremy Frantz observed [Appellant]’s
     vehicle on the side of the road in the northbound lane of
     Interstate 79.[FN1] [Trooper] Frantz pulled his cruiser directly
     beside [Appellant]’s vehicle to see if she needed assistance.
     [Appellant]’s vehicle was running as she attempted to put an
     address into her GPS. When [Trooper] Frantz attempted to
     engage [Appellant], she gave him a “100 mile stare”. Frantz
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      asked if she was okay, and she replied, “yes”. [Appellant] told
      him she was headed to New York for a race. Frantz observed
      that she either had a southern drawl or slurred speech and
      glassy eyes.

      Trooper Frantz then moved his cruiser to the front of
      [Appellant]’s      vehicle,   exited,     and   further    engaged
                   [FN2]
      [Appellant].        Frantz asked her if she had been drinking. She
      denied it. (She stated that she was looking forward to drinking
      once she arrived at her destination.)            Frantz requested
      identification and [Appellant] complied. Appellant slurred her
      speech, cried continually, and she appeared confused. She
      continued to repeat herself and was unable to follow directions.

      Based upon his observations, [] Frantz performed a horizontal
      gaze nystagmus (“HGN”) test and [Appellant] tested positive.
      (During the HGN, [Appellant] had difficulty following directions.)
      [Appellant] was placed under arrest.
            [FN1]
                    [Appellant]’s hazard lights were off.
            [FN2]
                    Another trooper pulled behind [Appellant]’s vehicle.

Trial Court Opinion and Order, 6/18/14, at 1-2 (citations to the Crimes Code

omitted).

      After the trial court denied her motion to suppress evidence, the trial

court, sitting as fact-finder, found Appellant guilty of all charges. Appellant

was sentenced to twenty-four months intermediate punishment (with the

first ninety days to be served on electronic monitoring) followed by

probation, as well as fines as costs. This appeal followed.

      Appellant raises one issue for our review:

      Did the lower court error [sic] in holding that the interaction
      between Trooper Frantz and Appellant was a mere encounter
      where Appellant was voluntarily pulled over to the side of the
      road, at 9:30 PM, Appellant’s hazard lights were not activated,
      there were no observable indications of distress to either the

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      driver or the vehicle, there was no report of a vehicle in need of
      assistance, there was no observable violation of the
      Pennsylvania Vehicle Code, and where trooper [sic] Frantz
      approached the vehicle from a distance of approximately 100
      yards with his emergency lights activated, pulled beside
      Appellant, and immediately began questioning Appellant about
      her presence on the scene.

Appellant’s Brief at 7.

      We review an order denying a motion to suppress as follows:

      In 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.

Commonwealth v. Scarborough, 89 A.3d 679, 683 (Pa. Super. 2014)

(quotation omitted).

      Regarding the specific issue before us, i.e., whether the initial

interaction between the officer and Appellant was a mere encounter or an

investigative detention, we apply the following standard:

      To determine whether a mere encounter rises to the level of an
      investigatory detention, we must discern whether, as a matter of
      law, the police conducted a seizure of the person involved. To
      decide whether a seizure has occurred, a court must consider all
      the circumstances surrounding the encounter to determine
      whether the demeanor and conduct of the police would have
      communicated to a reasonable person that he or she was not
      free to decline the officer’s request or otherwise terminate the
      encounter. Thus, the focal point of our inquiry must be whether,
      considering the circumstances surrounding the incident, a


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       reasonable person innocent of any crime, would have thought he
       was being restrained had he been in the defendant’s shoes.

Commonwealth v. Collins, 950 A.2d 1041, 1046-47 (Pa. Super. 2008)

(citation omitted).

       The thrust of Appellant’s argument is that the activation of patrol

emergency lights instantly subjected Appellant to an investigative detention.

This very same argument has been raised, unsuccessfully, numerous times.

On several occasions, this Court has stated “triggering emergency lights or

initiating interaction with a driver does not necessarily shift the interaction

between an officer and a driver from a mere encounter to an investigatory

detention.”    Commonwealth v. Kendall, 976 A.2d 503, 505 (Pa. Super.

2009) (citing, inter alia, Commonwealth v. Conte, 931 A.2d 690 (Pa.

Super. 2007), and Commonwealth v. Johonoson, 844 A.2d 556 (Pa.

Super. 2004)).1

____________________________________________


1
  In Kendall, driver was driving slowly and then pulled his car off to the side
of the road where there were no driveways, commercial business, or homes.
Trooper pulled his patrol behind driver’s vehicle, activated the emergency
lights, and approached driver. Trooper asked driver why he suddenly pulled
over. While interacting with driver, trooper noted signs of intoxication.
Driver filed a motion to suppress, arguing the stop (an investigative
detention) was illegal because it was not supported by reasonable suspicion.
We disagreed, finding the initial interaction did not require reasonable
suspicion because it amounted to a mere encounter. In Conte, police
officer, after receiving a radio dispatch of a possible disabled vehicle, drove
to the scene, pulled behind driver’s vehicle and activated his vehicle’s
emergency lights. Officer then approached driver, who had already exited
the vehicle, and asked him if he needed help. Ddriver responded he had a
flat tire. While interacting with driver, officer noted signs of intoxication.
(Footnote Continued Next Page)


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      Whether     there      is   a   seizure    depends   on   the   totality   of   the

circumstances. In Johonoson, we noted:

      Critical to our determination is the fact that [a]ppellant pulled off
      the road voluntarily and came to a full stop on the side of the
      road without any prompting from Trooper Perloff. Trooper
      Perloff then parked behind [a]ppellant’s vehicle, activated his
      overhead lights, and approached [a]ppellant to see if he could be
      of assistance. Trooper Perloff did not stop [a]ppellant’s vehicle.

      Appellant relies almost exclusively on Trooper Perloff’s flashing
      lights as a signal that he was “not free to leave,” thus making
      the interaction an investigative detention. We recognize that
      flashing overhead lights, when used to pull a vehicle over,
      are a strong signal that a police officer is stopping a vehicle and
      that the driver is not free to terminate this encounter. The same
      is not necessarily true under the factual circumstances presented
      here. It is one traditional function of State Troopers, and indeed
      all police officers patrolling our highways, to help motorists who
      are stranded or who may otherwise need assistance. Such
      assistance is to be expected, and is generally considered
      welcome.

      Often, and particularly at night, there is simply no way to render
      this aid safely without first activating the police cruiser’s
      overhead lights. This act serves several functions, including
      avoiding a collision on the highway, and potentially calling
                       _______________________
(Footnote Continued)

Driver filed a motion to suppress, arguing driver was instantly subjected to
an investigative detention—and not a mere encounter—when officer pulled
his patrol car behind his vehicle, activated the overhead lights, and
interacted with driver. We disagreed, holding that the initial interaction
between officer and driver was a mere encounter, not an investigative
detention. In Johonoson, trooper observed a slow-moving vehicle traveling
with its flashers activated on rural a road at approximately 3:00 a.m.
Without signal, driver pulled his vehicle off to the side of road, at which point
trooper followed behind. Trooper activated emergency lights, exited his car,
and approached driver. Driver filed a motion to suppress, arguing that
officer’s use of emergency lights made him subject to an investigative
detention. We disagreed, holding that the activation of emergency lights did
not turn the interaction into an investigative detention.



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       additional aid to the scene.      Moreover, by activating the
       overhead lights, the officer signals to the motorist that it is
       actually a police officer (rather than a potentially dangerous
       stranger) who is approaching.

Johonoson, 844 A.2d at 562 (footnote omitted) (emphasis in original).

       Here, the trial court found that “[Trooper] Frantz pulled his cruiser

directly beside [Appellant]’s vehicle to see if she needed assistance[,]” and

that the interaction “was a mere encounter.” Trial Court Opinion and Order,

at 1, 4.    Upon review, we conclude the record supports the trial court’s

findings and conclusions. Accordingly, we hold the trial court did not err in

finding the initial stop was a mere encounter, which did not need to be

supported by reasonable suspicion of criminal activity.

       Appellant,     however,      argues      the   instant   case   is   similar   to

Commonwealth v. Fuller, 940                    A.2d 476    (Pa. Super. 2007), and

Commonwealth v. Hill, 874 A.2d 1214 (Pa. Super. 2005)2 because, as in

____________________________________________


2
  In Fuller, driver voluntarily pulled his vehicle off onto the berm of the road
after noticing a patrol car following closely behind. Troopers pulled over
after driver, activated their emergency lights, and approached the driver.
Shortly after talking with the driver, troopers noticed signs of intoxication.
Driver moved to suppress the evidence for lack of reasonable suspicion, but
the trial court denied the motion, concluding that driver’s interaction with
troopers was a mere encounter that needed no reasonable suspicion. We
disagreed, finding that the encounter between troopers and driver was in
fact an investigatory detention that required reasonable suspicion. We
reasoned that driver was not driving abnormally slowly or with his flashers
activated. Further, we noted that driver did not engage in any conduct that
would suggest to troopers that he was in need of assistance. In Hill, police
officers on patrol observed a truck driving slowly. Officers were closely
following the truck, when driver suddenly slowed and pulled off to the side of
(Footnote Continued Next Page)


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Fuller and Hill, Appellant did not do anything that would lead the trooper to

believe she needed assistance. We disagree.

      The factual circumstances in Fuller and Hill are different from the

instant scenario. In Fuller and Hill, the officers saw the motorists driving

on the road before deciding to engage the motorists.          Prior to engaging

them, the officers did not observe anything that would suggest the motorists

needed assistance.        Here, however, Appellant’s vehicle was parked on an

interstate at night, which is unusual.            While Appellant did not need

assistance—and she might have done nothing to suggest she needed

assistance, given the time and location where Appellant decided to park, it is

not only reasonable, but also expected, that a policer officer would stop to

conduct a safety check. See, Kendall, 976 A.2d at 508. Again, the analysis

is based on the totality of the circumstances, and not only those that are

most convenient.




                       _______________________
(Footnote Continued)

the road. Officers followed driver to the side of the road, activated the
emergency lights, and approached the vehicle. One officer asked driver why
he pulled over, to which driver responded that he noticed the patrol car
following behind him. At that point, officer noticed signs of intoxication.
Driver moved to suppress the evidence of intoxication, arguing officers
lacked reasonable suspicion to conduct a stop. Specifically, he argued
officer did not observe any violation of the Vehicle Code, nor did he give
officer any indication he needed assistance. The trial court agreed with
driver. We affirmed.




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     It should also be noted that absence of outward signs of a vehicle

being in distress does not bar an officer from conducting a safety check. In

Collins, we noted:

     The record indicates for example, that Trooper Walton parked
     twenty feet away from the rear of the vehicle. . . . The vehicle
     in question was not obstructing traffic or in violation of any
     traffic regulations.   Although people parked at this location
     regularly, they did not do so as frequently after dark. Thus,
     Trooper Walton was concerned enough to check on the condition
     of the vehicle and safety of its occupants. Moreover, Trooper
     Walton testified that no outward sign of distress emanated from
     the vehicle, and he did not observe anything that would lead him
     to believe that illegal activity was occurring. Further, Trooper
     Walton explained on cross-examination that the occupants were
     not scrambling around as if they were trying to get away
     because a state trooper was approaching them.            Instead,
     Trooper Walton approached the vehicle requesting information,
     asked if “everyone was ok” and then [a]ppellee blurted out that
     they were smoking marijuana. Trooper Walton at that point
     smelled burnt marijuana and observed the bong in the vehicle.

Collins, 950 A.2d at 1047 (footnote and citations to record omitted).

Ultimately, in Collins, considering the circumstances of the case, we

reversed the trial court’s order granting the driver’s motion to suppress,

finding that the interaction between the trooper and the driver “typif[ied] a

mere encounter . . ., not an investigative detention.” Id.

     Similarly, here, while Trooper Frantz did not observe any outward sign

of distress emanating from Appellant’s vehicle, he did observe circumstances

suggesting assistance might be needed. Drivers do not commonly stop their

cars on an interstate at night, and doing so is generally associated with a

motorist having some sort of problem. Under the circumstances, therefore,


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an officer checking on the motorist or the vehicle is not only likely, but also

expected. What matters is whether, under the circumstances, the driver had

reason to believe that the officer was simply carrying out his duty to render

aid.   Here, the trial court found the encounter between Appellant and

Trooper Frantz was not an investigative detention, but rather an officer

fulfilling his duty to see if a motorist needed assistance. The record supports

this finding and conclusion. Accordingly, Appellant’s claim fails.

       Finally, Appellant fails to reconcile Fuller and Hill with other cases,

such as Kendall, where this Court did not find the interaction to be an

investigatory stop. In Kendall, we noted:

       It is true that there are cases where the trial court found that
       the stop was not just a mere encounter to render assistance,
       and the officer needed reasonable suspicion of criminal activity
       to detain a vehicle. In those cases, it was found that the driver
       would not reasonably believe he or she was free to leave or
       terminate the encounter with the officer. The activation of the
       officer’s emergency lights when the officer is approaching the
       driver’s vehicle may be a factor in what a reasonable driver
       would believe. Therefore, there would be record support for a
       trial court finding that the interaction between the officer and the
       driver amounts to an investigatory detention which requires
       reasonable suspicion.

       These are fact-sensitive situations and in general we must defer
       to the trial court determination. The cases that hold there was
       an investigative detention are distinguishable from this case,
       particularly because the trial court did not agree that the stop
       was to render assistance. [This Court then discussed Hill and
       Fuller.]

       ....

       While we have held that the applicable standard in determining
       whether an interaction rises to the level of an investigative

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     detention hinges on whether “a reasonable person believe[s] he
     was not free to go and was subject to the officer’s orders,” this
     should not be the only standard in situations like the one at
     hand. Cf. Fuller, 940 A.2d at 479. It has been suggested in
     the case law that this determination might turn on whether the
     driver had reason to believe that the officer is simply carrying
     out his duty to render aid. The ultimate decision is one the
     suppression judge must make after hearing all of the testimony
     and determining the credibility of the witnesses. Whether the
     officer believes the driver is free to leave is not the determining
     factor, and neither is the use of hazard lights before pulling over.

     ....

     In cases where a driver pulls over for an unknown reason, the
     officer must not be restrained from investigating the situation to
     assess whether help is needed. If the investigation occurs at
     night, it is reasonable for an officer to activate overhead lights to
     ensure his or her own safety as well as the safety of the driver,
     and to notify passing vehicles of their presence. A driver’s
     unusual behavior is enough of a reason for an officer to stop,
     assess the situation, and determine whether the driver is in need
     of assistance.

     Certainly an officer would realize that there might be a variety of
     reasons for unusual behavior by a driver which could include
     driving under the influence of drugs or alcohol. However, merely
     because the officer considers drunk driving as one alternative
     does not mean he is precluded from trying to aid a citizen if he
     also thinks the driver might be in distress. This decision must in
     the first instance be made by the trial judge and should not be
     upset unless the record does not support the trial judge’s
     findings.

Kendall, 976 A.2d at 507-09 (emphasis in original).

     Here, as in Kendall, the suppression court, considering the totality of

circumstances, concluded the trooper approached the vehicle to conduct a

safety check.   Here, as in Kendall, the record supports this finding.




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Accordingly, the trial court did not err in denying Appellant’s motion to

suppress evidence.3

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/21/2015




____________________________________________


3
  At oral argument, the parties mentioned Commonwealth v. Barnes, 96
A.3d 1084 (Pa. Super. 2014), (unpublished memorandum), aff’d, 121 A.3d
956 (Pa. 2015).       Reliance on Barnes is misplaced.         Barnes is an
unpublished memorandum.           As such, under our Internal Operating
Procedures (I.O.P.), we cannot rely upon or cite it. Superior Court I.O.P.
65.37. Additionally, our Supreme Court affirmed Barnes in a per curiam
order. It is well-established that per curiam orders do not carry precedential
force. See, e.g., Commonwealth v. Thompson, 985 A.2d 928, 937-38
(Pa. 2009). As such, we did not consider Barnes in deciding the instant
matter.



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