J-S84041-17

                                   2018 PA Super 106


COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BRIAN LEE THRAN                            :
                                               :
                       Appellant               :   No. 1155 MDA 2017

              Appeal from the Judgment of Sentence July 3, 2017
                  In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0006925-2016


BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.

OPINION BY OTT, J.:                                         FILED MAY 02, 2018

       Brian Lee Thran appeals from the judgment of sentence imposed on July

3, 2017, in the Court of Common Pleas of York County, following his conviction

at a bench trial on four counts of driving under the influence (DUI).1 In this

timely appeal, Thran argues the trial court erred in failing to suppress the

physical evidence. Thran asserts said evidence was improperly obtained after

he was subjected to an investigative detention that was not supported by a

reasonable suspicion of criminal activity.         After a thorough review of the

submissions by the parties, relevant law, and the certified record, we affirm.


____________________________________________


1 The main count, Count 4, was DUI: Highest Rate of Alcohol (BAC .16+), 2nd
Offense, 75 Pa.C.S. § 3802(c). All counts were under various subsections of
Section 3802. Thran was sentenced to five years of intermediate punishment,
the first year of which to be served in the York County Prison. We note that in
addition to having a blood alcohol content (BAC) of .184, the chemical analysis
of his blood also indicated Thran had trace amounts of morphine (51 ng/mL)
and oxycodone (34 ng/mL).
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       The underlying facts of this matter are taken from the trial court opinion

dated September 29, 2017 and the notes of testimony of the suppression

hearing held on February 17, 2017.

       On September 17, 2016, Northern York County Regional Police Officer

(NYCRP) Patrick McBreen was working the night shift. N.T. at 5-6.

       At 2304 hours (11:04 p.m.), a call was made to York County
       Control from a named citizen (Justin Baugherman).[2] The call was
       dispatched to the Officer and the following information was
       obtained from the caller:

             Mr. Baugherman observed a male riding a black Harley
              Davidson motorcycle; and

             The male was wearing a black leather jacket; and

             The motorcycle was swerving all over the road and
              passing over the white line; and

             The motorcycle was traveling north on Orchard Road,
              made a right onto Lincoln Highway, and pulled into
              Hartlob’s Garage at the corner of Orchard Road and
              Lincoln Highway on Rt. 30; and

             Mr. Baugherman made the call to 911 because he was
              concerned for the individual’s safety.

       The Officer arrived at the location provided by the caller (Hartlob’s
       Garage) only eight (8) minutes after receiving the call. The Officer
       observed a black Harley Davidson motorcycle, and a male wearing
       a black leather jacket leaning on the motorcycle. Hence, the
       location given in the call, the description of the vehicle, and the
       description of what the individual was wearing were all
       corroborated. The Officer further testified that he had a duty to
____________________________________________


2 The notes of testimony and trial court opinion indicate the witness’s name is
Baugherman. However, the certified record indicates the name is actually
Justin Wagaman. It appears Mr. Wagaman, and his wife, were subpoenaed
to appear at the trial before the District Justice. See NYCRPD Witness List.

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      investigate and therefore approached [the driver of the vehicle].
      Officer McBreen could not recall whether he had activated his
      overhead lights, but he indicated they may have been on.

Trial Court Opinion at 2-3 (citations to N.T. omitted).

      We further note that Officer McBreen testified the garage was closed

and there were no other cars around at time of his interaction with Thran.

N.T. at 30.

      The standard of review for an order denying a suppression motion is as

follows:

      In reviewing the denial of a suppression motion, our role is to
      determine:

           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, we are bound by these findings
           and may reverse only if the court's legal conclusions are
           erroneous. Where, as here, 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 our plenary review.

      Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649, 654
      (2010) (internal quotations and citations omitted). Our scope of
      review is limited to the evidence presented at the suppression
      hearing. In re L.J., 622 Pa. 126, 79 A.3d 1073, 1080 (2013).

Commonwealth v. Mackey, 177 A.3d 221, 226 (Pa. Super. 2017).



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       Because this matter also involves a claim of improper search and

seizure, we also consider the factors that delineate the differences

between a mere encounter and an investigative detention.3

       The investigation of possible criminal activity invariably brings
       police officers in contact with members of the public. Depending
       on the circumstances, a police-citizen encounter may implicate the
       liberty and privacy interests of the citizen as embodied in both the
       federal constitution, see U.S. Const. art. IV, and our state
       constitution, see Pa. Const. art. I, § 8. The law recognizes three
       distinct levels of interaction between police officers and citizens:
       (1) a mere encounter; (2) an investigative detention, often
       described as a Terry stop, see Terry v. Ohio, 392 U.S. 1, 88
       S.Ct. 1868, 20 L.Ed.2d 889 (1968); and (3) a custodial detention.
       See Commonwealth v. Jones, 874 A.2d 108, 116 (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,”
       Commonwealth v. DeHart, 745 A.2d 633, 636 (Pa. Super.
       2000)(internal citations and quotations omitted), and therefore
       need not be justified by any level of police suspicion.
       Commonwealth v. Polo, 563 Pa. 218, 759 A.2d 372, 375
       (2000).

       “In contrast, an ‘investigative detention’ ... carries an official
       compulsion to stop and respond .... Since this interaction has
       elements of official compulsion it requires reasonable suspicion of
       unlawful activity.” DeHart, 745 A.2d at 636. In addition, while
       reasonable suspicion of unlawful activity is sufficient to justify a
       forcible stop, it does not necessarily justify a frisk for weapons.
       See Commonwealth v. Davis, 102 A.3d 996, 999 (Pa. Super.
       2014) (“A Terry frisk is a type of investigative detention requiring
       reasonable suspicion that criminal activity is afoot and that the
       individual whose suspicious behavior he is investigating at close
____________________________________________


3 The third level of interaction between the police and a citizen, custodial
detention, is not at issue. Therefore, we need not relate the law as it applies
to that interaction.

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      range is armed and presently dangerous to the officer or to
      others.”) (internal quotation marks omitted, emphasis added).
      Only when the officer reasonably believes the suspect may be
      armed and dangerous is a weapons frisk appropriate. See
      Commonwealth v. Pinney, 474 Pa. 210, 378 A.2d 293, 296
      (1977)(“[I]n the case of a self-protective search for weapons, a
      police officer must be able to point to particular facts from which
      he could reasonably infer that the individual was armed and
      dangerous.”).

Id. at 226-27 (footnotes omitted) (emphasis in original).

      Thran argues that he was subjected to an investigative detention at the

time Officer McBreen turned on his overhead emergency lights. Further, the

tip Officer McBreen responded to was insufficient to support the investigative

detention.

      We begin by noting that the trial court did not make a specific factual

finding that Officer McBreen activated his overhead emergency lights.       As

quoted above, the trial court noted that Officer McBreen indicated his lights

might have been on. However, we accept that the lights were activated as a

fact because the trial court’s analysis does not address the scenario where the

lights were not activated. All parties agree that if Officer McBreen did not

activate his overhead emergency lights, the encounter between Thran and

Officer McBreen would have been a mere encounter and the suppression of

evidence would not be warranted.      If the trial court determined that the

overhead emergency lights had not been activated, the trial court would have

simply resolved the matter on those grounds. Because the trial court did not




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J-S84041-17


do so, and fully analyzed the issue under the premise that the overhead

emergency lights were activated, we accept that as a fact.

       Whether the overhead emergency lights were activated is important

because case law on this issue has changed from the time of the suppression

hearing to today.4 In November, 2017, our Supreme Court issued its decision

in Commonwealth v. Livingstone, 174 A.3d 609 (Pa. 2017).                  In that

decision, the Supreme Court held that when the police activate the overhead

emergency lights, no reasonable person would believe he or she was free to

leave. Accordingly, the person is subject to an investigative detention when

the lights are activated. Specifically, Livingston stated:

       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
       Johonoson, 844 A.2d at 562. 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.

Id., 174 A.3d at 621.



____________________________________________


4 The issue of overhead emergency lights was raised at the suppression
hearing and has been preserved throughout the course of this appeal.
Accordingly, Thran is entitled to the application of developing case law on the
issue.

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J-S84041-17


       After citing relevant portions of the Pennsylvania Driver’s Manual and

Motor Vehicle Code, our Supreme Court continued:

       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 622.5

       Accordingly, pursuant to Livingstone, once Officer McBreen activated

his overhead emergency lights, Thran was subjected to an investigatory

detention. We must now examine whether that detention was supported by

a reasonable suspicion of criminal activity.     If so, then the detention was

justified and Thran’s argument is unavailing.

       Here, the police received a phone tip from an identified caller. The caller

reported that he was witnessing erratic driving that placed, minimally, that

driver in jeopardy. Additionally, the description of the motorcycle’s actions

provided ample suspicion of impaired driving.            The caller provided a

description of the driver and specifically identified the type of motorcycle being

operated. Finally, the caller informed the police where this erratic driving was

taking place and where the motorcycle had driven.          Upon arriving at the

____________________________________________


5It appears that Livingstone has overruled sub silencio Commonwealth v.
Johonoson, 844 A.2d 556 (Pa. Super. 2004) and subsequent cases such as
Commonwealth v. Conte, 931 A.2d 690 (Pa. Super. 2007) and
Commonwealth v. Kendall, 976 A.2d 503 (Pa. Super. 2009).



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location identified by the caller a mere eight minutes following the call, Officer

McBreen witnessed the identified brand of motorcycle and, there being no

other people nearby,6 the presumed driver. The driver was wearing a leather

jacket as described by the caller. The trial court noted that Officer McBreen

corroborated all the information provided by the caller.

        The trial court relied upon Commonwealth v. Collazo, 692 A.2d 1116

(Pa. Super. 1997), in support of its holding that the tip from the identified

caller provided Officer McBreen with the reasonable suspicion sufficient to

justify the investigative detention. We agree.

        The court noted that an officer need not personally observe
        suspicious activity in order to conduct an investigatory stop under
        Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
        “Identified citizens who report their observations of criminal
        activity to police are assumed to be trustworthy, in the absence
        of special circumstances.” [In the Interest of] S.D., supra [479
        Pa. Super. 576] at 580, 633 A.2d [172] at 174. Further, the stop
        in S.D. was supported by the relevant factors to be considered in
        such cases, namely, the specificity of the description, the
        proximity of the crime to the sighting of the suspect, the time and
        place of the confrontation and the nature of the offense. Id.

        Here, Officer LaCombe received a face-to-face citizen's complaint
        of a crime in progress. When he promptly arrived at the location,
        the officer observed appellant, matching exactly the detailed
        description given by the citizen. Officer LaCombe then approached
        appellant and began speaking with him about the information he
        had received. Under the authority of S.D., the initial stop and
        questioning of appellant was proper. See also Commonwealth
        v. Stokes, 480 Pa. 38, 389 A.2d 74 (1978) (victim and eyewitness
        information regarding the commission of a crime sufficient to
        establish probable cause); Commonwealth v. Hamme, 400
        Pa.Super. 537, 583 A.2d 1245 (1990)(police can rely on
____________________________________________


6   Additionally, there were no other vehicles. N.T. at 30.

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     “information from other officers or citizen witnesses;” officer made
     valid Terry stop based on other officer's observation of suspect's
     erratic driving).

     We caution that the authority of a police officer in these
     circumstances is limited. He or she is permitted only to “approach
     and briefly detain” a potential suspect “for investigatory
     purposes.” Commonwealth v. Arch, 439 Pa.Super. 606, 654
     A.2d 1141, 1143 (1995). In Arch, this court noted that while an
     officer is prohibited from relying on an “unparticularized suspicion”
     or a “hunch” as a basis for a Terry stop, he or she may rely on a
     police radio broadcast if the suspect matches the specific
     description given by the individual who reported the crime. Id. at
     612-14, 654 A.2d at 1144 (citing Commonwealth v. Prengle,
     293 Pa.Super. 64, 437 A.2d 992 (1981)).

     Conversely, a “common report” is insufficient to support an
     investigatory stop. In Commonwealth v. Williams, 298
     Pa.Super. 466, 444 A.2d 1278 (1982), neighborhood residents
     informed a police officer that a particular individual was a known
     “bicycle thief” who had in his possession some bicycles he had
     stolen. When the officer later saw the individual riding a bike, he
     made a Terry stop to investigate the matter. This court held that
     the information from the citizens was insufficient to cause the
     officer to believe that criminal activity was afoot. The lack of a
     specific crime report was fatal in Williams.

     A detailed citizen's report of a specific crime in progress is
     appropriately addressed by a prompt investigatory stop;
     general information to police about a person who has broken the
     law in the past is not. Further, the intrusion of which appellant
     complains is not overly burdensome since, as in all Terry stops,
     the “suspect's expectation of privacy is not sufficiently infringed
     by the minimal intrusion attendant to an investigatory stop.”
     Commonwealth v. Epps, 415 Pa.Super. 231, 608 A.2d 1995,
     1096 (1992).

Commonwealth v. Collazo, 692 A.2d at 1118-19 (emphasis added).

     We believe that the instant facts are sufficiently similar to Collazo.

Therefore, we find that Officer McBreen possessed a reasonable suspicion of

criminal activity that supported the investigative detention.     Because the

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investigative detention was proper, Thran’s argument is unavailing and he is

entitled to no relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/2/2018




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