J-A15006-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

ROBERT WHEATLEY

                          Appellant                      No. 2467 EDA 2014


             Appeal from the Judgment of Sentence July 18, 2014
                In the Court of Common Pleas of Bucks County
             Criminal Division at No(s): CP-09-CR-0001753-2014


BEFORE: BOWES, MUNDY, AND FITZGERALD* JJ.

MEMORANDUM BY BOWES, J.:                                  FILED JULY 16, 2015

       Robert Wheatley appeals from the judgment of sentence of one to two

years incarceration to be followed by one year probation imposed by the trial

court after it found him guilty of driving under the influence (“DUI”) highest

rate, third offense and a third offense DUI—general impairment. We affirm.

       The trial court delineated the following facts.

             On September 27, 2013, Officer Scott Patrick, an officer
       with the Middletown Township Police, was on patrol near the
       Summit Square Shopping Center. Officer Patrick was in full
       uniform and driving a marked patrol vehicle. At approximately
       3:45 a.m., Officer Patrick observed the Appellant driving a silver
       Ford F150 pickup truck on Country Lane. Officer Patrick saw the
       Appellant make a wider than normal turn onto Doublewooods
       [sic] Road, which drew Officer Patrick's attention to the
       Appellant. At that time, the Appellant pulled into the shopping
       center, turned around, proceeded into a fire lane and stopped in

*
    Former Justice specially assigned to the Superior Court.
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       front of the Giant store. A passenger in the Appellant's vehicle
       exited the truck and went into the Giant store.[1]

             Officer Patrick pulled into the shopping center and noticed
       that the Appellant had stopped in the fire lane, so he backed up
       his vehicle until the driver’s [sic] side windows were alongside
       each other. Officer Patrick stopped because he wanted to tell
       the Appellant to park in a parking space rather than the fire
       lane. Officer Patrick's window was down and he signaled for the
       Appellant to roll his window down so he could speak with him.

              The Appellant told Officer Patrick that he had stopped to
       get cigarettes. At that time, Officer Patrick noticed a strong odor
       of alcohol and that the Appellant was slurring his speech. Officer
       Patrick then told the Appellant to stay where he was and turned
       his patrol vehicle around to pull up behind the Appellant's
       vehicle. Before he could do so, the Appellant pulled forward into
       the Giant parking lot and parked his vehicle. Officer Patrick
       pulled behind the Appellant and his overhead lights may have
       been activated at that time. Another officer, Mary Alice Felt,
       arrived at the scene at some point after Officer Patrick
       positioned his vehicle behind the Appellant's vehicle.

             Officer Patrick exited his patrol vehicle and approached the
       Appellant's vehicle to ask for his license and registration. During
       this exchange with the Appellant, Officer Patrick noticed that the
       Appellant's speech was slurred, his breath smelled of alcohol, his
       motor skills were slow, and he had difficulty finding his driver's
       license and registration although they were in plain view. Officer
       Patrick asked the Appellant where he had been and why he came
       to Giant, to which the Appellant responded that he and his
       brother were coming from their mother's house and came to
       Giant to get cigarettes. Officer Patrick told the Appellant that he
       suspected that he was under the influence, and the Appellant
       stated that he had a few beers.


____________________________________________


1
 A surveillance video of the encounter shows that the passenger, Appellant’s
brother, exited the vehicle after Officer Patrick initially stopped next to
Appellant and Appellant pulled away from the officer before parking.



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            At that point, Officer Patrick asked the Appellant to exit the
      truck and perform field sobriety tests. The Appellant nearly fell
      as he exited the truck and had trouble balancing. Officer Patrick
      began to explain the tests, at which time the Appellant stated
      that he was drunk. Officer Patrick decided not to conduct field
      sobriety tests because he did not believe that the Appellant
      could complete them in his condition. Instead, Officer Patrick
      administered a Portable Breathalyzer Test, which indicated the
      presence of alcohol on the Appellant's breath. Officer Patrick
      placed the Appellant under arrest for driving under the influence
      at that time. After his arrest, the Appellant was taken to the
      hospital for a blood alcohol test, which showed that Appellant's
      blood alcohol content was 0.208% alcohol by volume.

Trial Court Opinion, 9/25/14, at 1-3 (citations omitted).

      The Commonwealth charged Appellant with two counts of DUI.

Appellant filed a motion to suppress and the trial court conducted a

suppression hearing.     Immediately after the hearing, the court denied

Appellant’s motion and Appellant agreed to a stipulated non-jury trial. The

evidence from the suppression hearing was incorporated and the court found

Appellant guilty of the aforementioned crimes.        Subsequently, the court

sentenced Appellant to a term of one to two years imprisonment to be

followed by one year of probation. This timely appeal ensued.

      The trial court directed Appellant to comply with Pa.R.A.P. 1925(b).

Appellant did so, and the court authored its Rule 1925(a) opinion.           The

matter is now ready for this Court’s review. Appellant presents four issues

for our consideration.

      1. The suppression court erred in finding that the contact
         between Appellant and law enforcement on September 27,



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         2013 at the Summit Square Shopping Center in Bucks County
         was a mere encounter rather than an investigatory detention.

      2. The suppression court erred in finding that the nature and
         circumstances of the contact between Appellant and law
         enforcement on September 27, 2013 did not constitute a
         seizure of Appellant.

      3. The suppression court erred in failing to suppress evidence
         discovered as a result of the seizure of Appellant on
         September 27, 2013 at the Summit Square Shopping Center
         in Bucks County.

      4. The suppression court erred in its findings of fact and
         conclusions of law.

Appellant’s brief at 4 (footnote omitted).

      Although Appellant purports to raise four separate issues, each claim is

necessarily intertwined.   The critical issue in this matter is whether the

suppression court erred in finding that the officer’s initial interaction with

Appellant was a mere encounter. We find that it did not.

      In evaluating a suppression ruling, we consider the evidence of the

Commonwealth, as the prevailing party below, and any evidence of the

defendant that is uncontradicted when examined in the context of the

suppression record.     Commonwealth v. Sanders, 42 A.3d 325, 330

(Pa.Super. 2012).     This Court is bound by the factual findings of the

suppression court where the record supports those findings and may only

reverse when the legal conclusions drawn from those facts are in error. Id.

      We begin by noting that in evaluating interaction between law

enforcement and other citizens, Pennsylvania courts look to whether the

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interaction is a mere encounter, an investigatory detention, or a custodial

detention, i.e., an arrest.      The latter is not in question herein.     A mere

encounter does not require police to have any level of suspicion that the

person is engaged in wrongdoing.            Commonwealth v. Downey, 39 A.3d

401, 405 (Pa.Super. 2012). At the same time, such an encounter does not

carry any official compulsion for the party to stop or respond.            Id.   An

investigative detention, however, subjects an individual to a stop and short

period of detention. Id. This seizure does not involve actions that are so

coercive as to comprise the equivalent of an arrest.            Id.   However, to

conduct an investigative detention, police must have reasonable suspicion of

criminal activity. Id.

         “[T]his standard is met ‘if the police officer's reasonable and articulable

belief that criminal activity was afoot is linked with his observation of

suspicious or irregular behavior on behalf of the particular defendant

stopped.’”       Commonwealth v. Kearney, 601 A.2d 346, 348 (Pa.Super.

1992). It is well-settled that “[m]ere presence near a high crime area or in

the vicinity of a recently reported crime, is not enough to warrant a Terry

stop.”     Id.    Rather, police “must observe irregular behavior before he

initiates a stop and, concurrently to his observation, he must hold a belief

that criminal activity is afoot.”     Id.    We consider what level of interaction

occurred under a totality of the circumstances test.          Commonwealth v.

Williams, 73 A.3d 609, 615-616 (Pa.Super. 2013).              This standard is an

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objective one, and looks to the reasonable belief of the citizen and not the

subjective view of law enforcement. Commonwealth v. Lyles, 54 A.3d 76,

83 (Pa.Super. 2012). “In evaluating the circumstances, the focus is directed

toward whether, by means of physical force or show of authority, the citizen-

subject's movement has in some way been restrained.”            Id. at 79-80.

Accordingly, we look to whether “in view of all surrounding circumstances, a

reasonable person would have believed that he was free to leave.”       Id. at

79.

      Appellant argues that Officer Patrick’s conduct in following him into the

grocery store parking lot, driving past him, and then reversing and asking

him to roll down his window constituted an investigative detention.

According to Appellant, these facts “evidenced a coercive show of authority

such that Appellant felt he was restrained and not free to leave, nor would a

reasonable person under the same circumstances have felt free to disregard

the officer and/or leave[.]” Appellant’s brief at 12.

      Here, considering the totality of the circumstances, we find Appellant’s

position untenable. Appellant actually moved his truck away from the police

officer and parked his truck after being directed to roll down his window and

engaging in the initial interaction with the officer. Appellant’s brother also

exited the truck and went inside the grocery store.       Further, even after

Appellant parked, Officer Patrick did not block Appellant’s ability to drive.

Clearly, the officer’s request to roll down Appellant’s window was not so

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coercive as to preclude Appellant from these actions. In this matter, a single

officer, without displaying his weapon, blocking Appellant’s ability to drive,

or turning on his lights, requested Appellant to roll down his window by

using a hand motion.       When Appellant did so, the officer immediately

detected the odor of alcohol and that Appellant’s speech was slurred in

speaking with the officer.   These actions are not so coercive as to be an

investigative detention.   See Commonwealth v. Au, 42 A.3d 1002 (Pa.

2012); Lyles, supra. Appellant’s position is meritless.

      Judgment of sentence affirmed.

      Justice Fitzgerald joins in this memorandum.

      Judge Mundy concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/16/2015




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