J-S17019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

SHARON LYNN CORONA,

                            Appellee                  No. 661 WDA 2014


                     Appeal from the Order March 20, 2014
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0013881-2013


BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                             FILED APRIL 10, 2015

       The Commonwealth appeals from the trial court’s order granting the

motion filed by Appellee, Sharon Lynn Corona, to suppress evidence

obtained following her interaction with police after she was approached by

an officer while in her parked automobile. We affirm.1

       The suppression court summarized the factual background of this case

as follows:

       On July 3, 2013, Plum Borough Police Officer Daniel Moriarty was
       on routine patrol in uniform in a marked vehicle. (T.T.)1 at 4.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  We note that on February 10, 2015, Appellee filed a motion to suspend
consideration before the panel and nunc pro tunc request for extension of
time to file her appellate brief. Appellee filed her appellate brief on March 4,
2015. Accordingly, said request is denied as moot.
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      Officer Moriarty was driving west on Saltzburg Road at
      approximately 2:30 a.m. when he noticed a car with its lights on
      parked in the parking lot of a local business. (T.T.) at 4 and 20.
      The car was completely off the road pulled off into that parking
      lot. (T.T.) at 12 and 20-21. The officer thought it had to be
      investigated because it was odd that a car was stopped at that
      location. (T.T.) at 5. Officer Moriarty passed the vehicle and
      then backed up his vehicle and put his window down to speak
      with the driver and ask what she was doing. (T.T.) at 4, 5. The
      driver, [Appellee], stated she was waiting for someone. (T.T.) at
      5. Officer Moriarty noticed slurred speech on the driver and
      decided to have a conversation with her. (T.T.) at 6. Officer
      Moriarty does not recall which words were slurred in his very
      brief conversation with [Appellee] and based his observation of
      slurred speech on one sentence. (T.T.) at 23. Officer Moriarty
      did not observe [Appellee’s] vehicle in operation, nor did he
      observe a motor vehicle code violation. (T.T.) at 24. At that
      point the Officer told [Appellee] to “hang on” and exited his
      vehicle to further investigate. (T.T.) at 6.
            1
              T.T. refers to the Trial Transcript of March 20,
            2014, followed by the page number.

             After the Officer exited his vehicle[, Appellee] once again
      stated she was waiting for someone. (T.T.) at 7. The person
      she was waiting for drove by as they were speaking with each
      other. (T.T.) at 7. Officer Moriarty later noticed glassy eyes and
      an odor of alcohol on [Appellee’s] breath. (T.T.) at 7. Shortly
      after that, a person did call [Appellee] on her cell phone and [the
      call] then came through on [Appellee’s] Blue Tooth in her
      vehicle. (T.T.) at 8. After the phone call, Officer Moriarty asked
      [Appellee] to exit the car and perform field sobriety tests. (T.T.)
      at 9. After administering the field sobriety tests, the officer
      determined [Appellee] was intoxicated.              (T.T.) at 12.
      Subsequently, he placed [Appellee] in handcuffs and under
      arrest. (T.T.) at 14.

Trial Court Opinion, 10/6/14, at 1-2.

      On December 16, 2013, Appellee was charged with two counts of

driving under the influence. On February 18, 2014, Appellee filed a motion

to suppress. The trial court held a suppression hearing on March 20, 2014.

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At the conclusion of the hearing, the trial court granted Appellee’s motion to

suppress.     The Commonwealth then filed this timely appeal on April 21,

2014.2,   3



       The Commonwealth presents the following issue for our review:

       1. Whether the suppression court erred in finding that the police
          officer’s actions and statements rendered the instant
          encounter a seizure that was not supported by either
          reasonable suspicion or probable cause?

Commonwealth’s Brief at 7.

       The Commonwealth argues that the trial court erred in granting

Appellee’s motion to suppress.             The Commonwealth contends that the

interaction between the police officer and Appellee was a mere encounter

because he did not give any commands or take any action that would have

indicated to a reasonable person that she was not free to leave.                     The

Commonwealth        posits    that   the   encounter   did   not   escalate   into   an

investigatory detention until after the officer approached Appellee and

____________________________________________


2
  We note that the Commonwealth needed to file its appeal by Monday, April
21, 2014 because April 19, 2014 was a Saturday. See 1 Pa.C.S. § 1908
(stating that, for computations of time, whenever the last day of any such
period shall fall on Saturday or Sunday, or a legal holiday, such day shall be
omitted from the computation).
3
   The Commonwealth has certified, pursuant to Pennsylvania Rule of
Appellate Procedure 311(d), the trial court’s order prohibiting the
introduction of evidence substantially handicaps the prosecution of this case.
Commonwealth’s Brief at 4. Therefore, pursuant to Pa.R.A.P. 311(d), this
Court has jurisdiction to hear this appeal from the trial court’s interlocutory
order, even though the order did not terminate the prosecution.



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observed the indicia of intoxication. Upon review of pertinent case law and

the certified record, we disagree.

      The standard of review an appellate court applies when considering an

order granting a suppression motion is well established and has been

summarized as follows:

            We begin by noting that where a motion to suppress
            has been filed, the burden is on the Commonwealth
            to establish by a preponderance of the evidence that
            the challenged evidence is admissible. In reviewing
            the ruling of a suppression court, our task is to
            determine whether the factual findings are supported
            by the record. If so, we are bound by those findings.
            Where, as here, it is the Commonwealth who is
            appealing the decision of the suppression court, we
            must consider only the evidence of the defendant’s
            witnesses and so much of the evidence for the
            prosecution as read in the context of the record as a
            whole remains uncontradicted.

      Moreover, if the evidence when so viewed supports the factual
      findings of the suppression court, this Court will reverse only if
      there is an error in the legal conclusions drawn from those
      findings.

Commonwealth v. Lindblom, 854 A.2d 604, 605 (Pa. Super. 2004)

(citations omitted).

            With respect to factual findings, we are mindful that it is
      the sole province of the suppression court to weigh the credibility
      of the witnesses. Further, the suppression court judge is entitled
      to believe all, part or none of the evidence presented. However,
      where the factual determinations made by the suppression court
      are not supported by the evidence, we may reject those findings.
      Only factual findings which are supported by the record are
      binding upon this court.




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Commonwealth v. Benton, 655 A.2d 1030, 1032 (Pa. Super. 1995)

(citations omitted). In addition, questions of the admission and exclusion of

evidence are within the sound discretion of the trial court and will not be

reversed on appeal absent an abuse of discretion.       Commonwealth v.

Freidl, 834 A.2d 638, 641 (Pa. Super. 2003).

      Further, we are aware that Pennsylvania Rule of Criminal Procedure

581, which addresses the suppression of evidence provides, in relevant part,

as follows:

      (H) The Commonwealth shall have the burden . . . of
      establishing that the challenged evidence was not obtained in
      violation of the defendant’s rights.

Pa.R.Crim.P. 581(H).

      Both the United States and Pennsylvania Constitutions prohibit

“unreasonable searches and seizures.”          U.S. Const. Amendment IV;

Pennsylvania Const. Art. 1, § 8.

             The Fourth Amendment to the United States Constitution
      and Article I, Section 8 of the Pennsylvania Constitution protect
      individuals from unreasonable searches and seizures, thereby
      ensuring the “right of each individual to be let alone.”
      Schneckloth v. Bustamonte, 412 U.S. 218, 236, 36 L. Ed. 2d
      854, 93 S. Ct. 2041 (1973); Commonwealth v. Blair, 394 Pa.
      Super. 207, 575 A.2d 593, 596 (Pa. Super. 1990).

Commonwealth v. By, 812 A.2d 1250, 1254 (Pa. Super. 2002).

      To secure the right of citizens to be free from intrusions by police,

courts in Pennsylvania require law enforcement officers to demonstrate

ascending levels of suspicion to justify their interactions with citizens as



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those interactions become more intrusive.      Commonwealth v. Beasley,

761 A.2d 621, 624 (Pa. Super. 2000).

     It is undisputed that:

     [s]tate case law recognizes three categories of interaction
     between police officers and citizens, which include: (1) a mere
     encounter, or request for information, which need not be
     supported by any level of suspicion, but which carries no official
     compulsion to stop or to respond; (2) an investigative detention,
     which must be supported by reasonable suspicion as it subjects
     a suspect to a stop and a period of detention, but does not
     involve such coercive conditions as to constitute the functional
     equivalent of an arrest; and (3) arrest or custodial detention,
     which must be supported by probable cause.

Commonwealth v. Acosta, 815 A.2d 1078, 1082 (Pa. Super. 2003) (en

banc). Thus, as the first level of interaction between police and citizens, a

mere encounter is itself a “request for information,” which needs no level of

suspicion. Id.

     As we explained in Commonwealth v. Jones, 874 A.2d 108 (Pa.

Super. 2005):

     A mere encounter can be any formal or informal interaction
     between an officer and a citizen, but will normally be an inquiry
     by the officer of a citizen. The hallmark of this interaction is that
     it carries no official compulsion to stop or respond.

Id. at 116 (quoting Commonwealth v. DeHart, 745 A.2d 633, 636 (Pa.

Super. 2000)).

     If the police action becomes too intrusive, a mere encounter may

escalate into an investigatory stop or a seizure.         Commonwealth v.

Boswell, 721 A.2d 336, 340 (Pa. 1998).         To effectuate an investigative



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detention, the officers are required to have reasonable suspicion that

unlawful activity was in progress.        In order to demonstrate reasonable

suspicion, the police must be able to point to specific 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).

      “Because the level of intrusion into a person’s liberty may change

during the course of the encounter, we must carefully scrutinize the record

for any evidence of such changes.”        Commonwealth v. Blair, 860 A.2d

567, 572 (Pa. Super. 2004) (citing Commonwealth v. Strickler, 757 A.2d

884 (Pa. 2000)). In determining whether a mere encounter has risen to the

level of an investigative detention, our inquiry focuses on whether the

individual in question has been seized.

      To guide the crucial inquiry as to whether or not a seizure has
      been effected, the United States Supreme Court has devised an
      objective test entailing a determination of whether, in the view
      of all surrounding circumstances, a reasonable person would
      believe that he was free to leave.           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.

Strickler, 757 A.2d at 889-890 (citations omitted).

      In Commonwealth v. Caban, 60 A.3d 120 (Pa. Super. 2012), this

Court addressed whether a police officer’s direction to a driver to “hold tight”

was indicative of an investigatory detention. In Caban, a state trooper cited

a driver for speeding, returned her license and paperwork, and told her that

she was free to leave. Id. at 128. When the driver began walking back to

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her car, the officer asked her if she would answer a few more questions,

which she did, before then saying she was ready to go. Id. The officer told

her to “hold tight” while he questioned the passenger, who was Caban. Id.

In determining that this conduct amounted to an investigatory detention,

this Court offered the following analysis:

      Based upon this factual scenario, we conclude that Caban and
      [the driver] were subjected to an investigatory detention. To the
      extent that [the state trooper’s] renewed questioning of [the
      driver] began as a mere encounter based upon the Strickler
      factors, when [the state trooper] told [the driver] to “hold tight”
      he unquestionably made clear to her that she was not free to
      leave the scene.        As our Supreme Court emphasized in
      Strickler, the threshold issue in distinguishing between a mere
      encounter and an investigatory detention is whether a
      reasonable person would have believed that she was free to
      leave, and to this end the inquiry must focus on whether the
      police officer, either by physical force or show of authority, has
      restricted the defendant’s movement in some way. Strickler,
      563 Pa. [47,] 58-59, 757 A.2d at 889-[8]90. When [the state
      trooper] informed [the driver] to “hold tight,” he restricted her
      movements and made clear that she was not free to leave the
      scene.

Caban, 60 A.3d at 128. Ultimately in Caban we determined that the facts

adduced by the state trooper by the time he told the driver to “hold tight”

provided the state trooper with sufficient reasonable suspicion to justify the

investigatory detention. Id. at 128-129.

      In the instant matter, the suppression court offered the following

pertinent discussion:

             In the case at hand, Officer Moriarty passed a vehicle
      legally parked in a parking lot. The vehicle lights were on and
      the emergency flashers were not on. (T.T.) at 6. Officer
      Moriarty does not recall if he activated his lights or not when he

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      pulled off the road. (T.T) at 23. Further, he testified that he did
      not observe [Appellee] commit any moving or traffic violations.
      (T.T.) at 24. The officer testified that he pulled up alongside
      [Appellee] because it was suspicious in nature for a car to be
      parked at that location.      (T.T.) at 25.    In fact, on direct
      examination the Officer testified that [Appellee] was pulled over
      on the side of the road and that it was “odd for a vehicle to be
      where it was” and that it definitely needed to be looked into.
      (T.T.) at 5. The Officer later acknowledged that [Appellee] was
      parked in a parking lot. (T.T.) at 12-13. He further testified
      that his stop was investigatory in nature. (T.T.) at 26.

                                     ***

             In this case, [Appellee] was legally parked in a parking lot.
      There was no indication that she was in any distress. The officer
      testified that his intention was to investigate due to the
      suspicious nature of a car being parked in that location2. The
      officer never testified that he was doing any kind of welfare
      check, just that he was suspicious. Asked what she was doing,
      [Appellee] stated that she was waiting for someone. In that
      brief sentence the Officer stated that [Appellee’s] speech was
      slurred but could not recall which words were slurred. At that
      point Officer Moriarity then told [Appellee] to “hang on” and
      decided to exit his vehicle to investigate. At that point no
      reasonable person would believe that they were free to leave.
      After assessing the evidence based on the totality of the
      circumstances, the Motion to Suppress, and the credibility of
      witnesses[,] I found that the Officer lacked reasonable suspicion
      to detain [Appellee] to further investigate.
            2
              In the Affidavit of Probable Cause the Officer stated
            that [Appellee’s] vehicle was pulled over to the right
            side of the roadway on the berm.

Trial Court Opinion, 10/6/14, at 5-7.

      Our review of the certified record reflects that at the suppression

hearing, Officer Moriarty testified and described what transpired in this

manner:




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            I was driving on Saltzburg Road. I was heading in a west
     direction when I came across a vehicle. It was off onto the right
     side of the roadway. The lights were on.

           I didn’t know why the vehicle was stopped at that time of
     night, so I pulled off, next to the vehicle.

                                   ***

     Actually, as I think it went – I think I may have went past that
     vehicle and I kind of noticed it, then I stopped and I backed up
     to the vehicle. I put my window down. [Appellee] put her
     window down.

          We had a conversation.     I asked her if there was
     something wrong and why she was sitting there.

N.T., 3/20/14, at 4-5.    Officer Moriarty explained that Appellee’s vehicle

lights were on, but her emergency flashers were not on. Id. at 6. Officer

Moriarty then offered the following testimony:

     Q. You asked her was everything okay?

     A. I did.

     Q. What, if anything, did [Appellee] say to you?

     A. She told me that she was waiting for somebody.

Id. at 6.   Officer Moriarty then indicated that, due to a slur in Appellee’s

speech, he thought it necessary to further investigate. Id. at 6-7. He also

offered the following testimony:

     Q. So you backed up, and put yourself in a safe place.        And
     what happened after that?

     A. Then I got out of the vehicle. I told her to hang on. I got
     out of the vehicle, then I had a conversation with her.

Id. at 6 (emphasis added).

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      Upon review of the certified record, we are constrained to conclude

that although Officer Moriarty’s initial interaction with Appellee when he

pulled up along the side of her vehicle was a mere encounter, the incident

then escalated into an investigatory detention.         Indeed, when Officer

Moriarty told Appellee to “hang on,” parked his police vehicle, and then got

out to talk with Appellee, he unquestionably made clear to her that she was

not free to leave the scene. Caban, at 128. Hence, the officer subjected

Appellee to an investigatory detention at that point.

      In order to justify the stop of Appellee, we reiterate that Officer

Moriarty was required to have reasonable suspicion that unlawful activity

was in progress at the time of the investigatory detention. To demonstrate

reasonable suspicion, the police must be able to point to specific facts and

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

experience. Cook, 735 A.2d at 677.

      During cross-examination, Officer Moriarty offered the following

relevant testimony concerning the incident:

      Q. And you came upon a car that was not in motion; correct?

      A. That’s correct.

                                    ***

      Q. So it was in a parked position, in – you described it as a
      business. Do you recall what type of business it was?

      A. I don’t know. I see that place all the time, I have no idea
      what that is.


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                                 ***

     Q. Where you positioned your vehicle you said you pulled up
     kind-of past it; right, then backed up?

     A. Yes.

                                 ***

     Q. You said that you rolled down your window; correct?

     A. That is correct.

     Q. Did you roll down your window first or did she roll down her
     window?

     A. No idea.

     Q. And there was a very brief conversation. In fact, you asked
     is everything okay; right?

     A. That is correct.

     Q. And her answer was yes, I am waiting for someone?

     A. Basically, yes.

     Q. So in that period of time you say that you noticed slurred
     speech?

     A. That is correct.

     Q. What exactly was it about the speech, do you recall? I
     mean, those are very few words there?

     A. Like which letters were actually slurred?

     Q. Yes, do you recall what it was?

     A. I don’t recall that. No, it was slurred speech. I don’t
     recall which words.




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      Q.   Based on basically one sentence you pulled your
      vehicle back, and you activated your emergency lights;
      right?

      A. Well, I mean, that’s what I did do. I don’t know if I
      activated emergency lights or not. I don’t know that for a fact.

      Q. But you called in a traffic stop?

      A. I did, I called in.

N.T., 3/20/14, at 20-23 (emphasis added).

      Although Officer Moriarty stated that Appellee’s speech was slurred,

there is no doubt that Appellee only spoke a few words to the officer.

Indeed, upon questioning, Officer Moriarty admitted that he could not recall

which of the few words or letters spoken by Appellee were actually slurred.

In light of this testimony, we are constrained to agree with the trial court

that Officer Moriarty failed to articulate specific observations necessary to

establish reasonable suspicion to effectuate the investigatory detention of

Appellee.

      In summary, when Officer Moriarty told Appellee to “hang on” and

then parked behind Appellee he subjected her to an investigatory detention.

Furthermore, Officer Moriarty failed to articulate specific observations

necessary to establish reasonable suspicion. Therefore, we agree with the

trial court’s determination that Appellee was subject to an investigatory

detention and that the police officer lacked the requisite reasonable

suspicion to effectuate the stop. Accordingly, we affirm the order of the trial

court granting Appellee’s motion to suppress.

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     Order affirmed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/10/2015




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