J-S59042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    LANCE SIMPSON                              :   No. 1158 EDA 2018

                 Appeal from the Order Entered March 12, 2018
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0004545-2017


BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.:                              FILED DECEMBER 11, 2018

        The Commonwealth appeals from the order entered March 12, 2018, in

the Delaware County Court of Common Pleas, granting the pretrial motion to

suppress evidence filed by appellee, Lance Simpson.1            On appeal, the

Commonwealth argues the trial court erred when it concluded officers had no

probable cause to arrest Simpson for driving under the influence of alcohol

(“DUI”),2 and related charges. For the reasons below, we reverse the order

granting suppression of the evidence, and remand for further proceedings.




____________________________________________


1Pursuant to Pa.R.Crim.P. 311(d), the Commonwealth properly certified in its
notice of appeal that “the trial court’s order will terminate or substantially
handicap the prosecution.” Notice of Appeal, 4/10/2018.

2   75 Pa.C.S. § 3802(a)(1).
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      The facts developed during the suppression hearing were summarized

by the trial court as follows:

      [O]n April 14, 2017 around 11:51PM, there were three telephone
      calls to 911 reporting an accident. Based upon those calls, the
      911 center dispatched officers into Sector 2, Drexel Hill, for an
      accident, a hit and run, in the area of Woodland Avenue and
      [Burmont] Road. Upon arrival at the accident location a tire was
      found in the street as well as gouge marks in the roadway. The
      Court heard testimony that the gouge marks led north on
      [Burmont] Road. The callers to 911 provided a description of a
      silver pick-up truck missing a tire with sparks and flames coming
      from the vehicle. None of the 911 callers identified the race or
      gender of the individual driving the silver pick-up. The police
      officers followed the gouge marks to [Simpson’s] driveway located
      at 2226 Steele Road. In the driveway[,] the police officers located
      a silver pick-up with heavy front end damage and with a missing
      tire. The officers testified that they knew the residence and that
      [Simpson] was known to drive a silver pick-up, as [he] was a
      fellow police officer.

             As Lieutenant [Louis] Panagoplos was en route to 2226
      Steele Road, he testified that he was approached by a neighbor
      who informed him “that I needed to check on [Simpson] to make
      sure he was okay.” The neighbor informed the Lieutenant that
      [Simpson] was “standing in the driveway looking at his vehicle.”
      This Court heard the testimony of Mr. [Adam] Stevenson, a
      neighbor of [Simpson] who spoke with one of the officers en route
      to [Simpson’s] residence. Mr. Stevenson testified that the officer
      stopped him and asked if the vehicle belonged to Mr. Stevenson
      or if he knew whom the vehicle belonged to[.] Mr. Stevenson
      informed the officer that “he didn’t want to know the answer to
      that [question]. And I said it belonged to [Simpson].” According
      to the testimony of Mr. Stevenson, the officer responded by
      putting his head on the steering wheel and saying that he was
      afraid that would be the answer. It was unclear to the Court if Mr.
      Stevenson is the same person who spoke with Lieutenant
      Panagoplos. This Court notes that if Mr. Stevenson is the same
      person who spoke with Lieutenant Panagoplos, then there is a
      discrepancy in the testimony between the two men.               Mr.
      Stevenson [did] not testify as to where he observed [Simpson]
      and testified that the officer approached him whereas Lt.


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      Panagoplos testif[ied] that a neighbor approached him and that
      neighbor observed [Simpson] looking at the silver pick[-]up.

             While at 2226 Steele Road, the officers saw no one in the
      driveway or on the property. The officers observed the silver
      pick[-]up backed into the driveway with the driver’s side front tire
      missing, damage to the axel and damage on the curb. According
      to the testimony of the officers, the lights of the residence were
      on and they knew that the television on the first floor was on. The
      officers approached and knocked on the front door of the
      residence and there was no response. There was no testimony
      from the officers if they were aware of anyone else on the property
      or inside the residence. There was no testimony that [Simpson]
      was observed in the vehicle. There was no testimony that [the]
      motor vehicle was running or being operated at the time the silver
      pick[-]up was observed in the driveway of 2226 Steele Road.

             Again, this Court heard conflicting testimony.        Officer
      [William] Sides testified that he went to the rear of the residence
      and saw [Simpson] there.          However, the testimony from
      Lieutenant Panagoplos was that he knocked on the front door of
      the residence for several minutes before [Simpson] appeared
      from the rear of the property. There was no testimony from
      Lieutenant Panagoplos that [Simpson] came from the rear of the
      property with Officer Sides.

            Lieutenant Panagoplos was clear that [Simpson] did not
      appear to be injured. It was also clear that immediately upon
      seeing [Simpson], he was detained by the police officers and
      transported from the scene. [Simpson] had no keys on his
      person. There was no testimony that the registration of the motor
      vehicle was identified as belonging to [Simpson].

            The officers’ testimony that [Simpson] smelled of alcoholic
      beverages, that his speech was slurred, that he had bloodshot
      eyes, and that he was unsteady on his feet and had a staggering
      gait was provided by observations made after [Simpson] was
      detained.

Trial Court Opinion, 5/10/2018, at 2-5 (record citations omitted).




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        Simpson was charged with DUI (general impairment) and the summary

offense of accidents involving damage to unattended property.3 On November

27, 2017, Simpson filed a pretrial motion to suppress, asserting he was

arrested without probable cause. The court conducted a suppression hearing

on March 1, 2018. Thereafter, on March 12, 2018, the trial court entered an

order granting Simpson’s motion, and suppressing “all physical evidence, of

which includes blood, as well as any statements and police observations after

[Simpson] was detained.”          Order, 3/12/2018.   The Commonwealth filed a

motion for reconsideration on March 22, 2018, which the court promptly

denied. This timely appeal followed.4

        On appeal, the Commonwealth contends the trial court erred in

concluding there was no probable cause to arrest Simpson for suspicion of

DUI. See Commonwealth’s Brief at 7. Rather, the Commonwealth insists the

facts and circumstances known to the officers at the time of the arrest led to

the “practical, common-sense conclusion that it was probable [Simpson] was

driving his truck under the influence of alcohol while incapable of safe driving.”

Id. at 14.

____________________________________________


3   See 75 Pa.C.S. § 3745(a).

4On April 11, 2018, the trial court ordered Simpson to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On April 18,
2018, the court entered an amended order, directing the Commonwealth, who
was the appealing party, to file a concise statement. The Commonwealth
complied with the court’s directive and filed a concise statement on May 1,
2018.


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     Our standard of review of an order granting a defendant’s motion to

suppress evidence is well-settled:

           When the Commonwealth appeals from a suppression
        order, we follow a clearly defined standard of review and
        consider only the evidence from the defendant’s witnesses
        together with the evidence of the prosecution that, when
        read in the context of the entire record, remains
        uncontradicted. The suppression court’s findings of fact
        bind an appellate court if the record supports those findings.
        The suppression court’s conclusions of law, however, are not
        binding on an appellate court, whose duty is to determine if
        the suppression court properly applied the law to the facts.
        Commonwealth v. Miller, 2012 PA Super 251, 56 A.3d
        1276, 1278–79 (Pa. Super. 2012) (citations omitted). “Our
        standard of review is restricted to establishing whether the
        record supports the suppression court’s factual findings;
        however, we maintain de novo review over the suppression
        court’s legal conclusions.” Commonwealth v. Brown, 606
        Pa. 198, 996 A.2d 473, 476 (2010) (citation omitted).

     Commonwealth v. Korn, 139 A.3d 249, 252–253 (Pa. Super.
     2016), appeal denied, 639 Pa. 157, 159 A.3d 933 (2016). “It is
     within the suppression court’s sole province as factfinder to pass
     on the credibility of witnesses and the weight to be given to their
     testimony. The suppression court is free to believe all, some or
     none of the evidence presented at the suppression hearing.”
     Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa. Super.
     2003) (citations omitted), appeal denied, 577 Pa. 701, 847 A.2d
     58 (2004). Nevertheless, the suppression court’s conclusions of
     law are not binding on an appellate court, and are subject to
     plenary review. Commonwealth v. Johnson, 969 A.2d 565, 567
     (Pa. Super. 2009) (citations omitted).

Commonwealth v. Byrd, 185 A.3d 1015, 1019 (Pa. Super. 2018).

     It is axiomatic that “[a] police officer may detain an individual in order

to conduct an investigation” when the officer has reasonable suspicion the

individual is “is engaging in criminal conduct.” Commonwealth v. Young,

904 A.2d 947, 957 (Pa. Super. 2006), appeal denied, 916 A.2d 633 (Pa.


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2006). Reasonable suspicion is determined by consideration of the totality of

the circumstances, and the “reasonable inferences [the police officer] is

entitled to draw from the facts in light of his experience.”    Id. (quotation

omitted). It is not limited to “only those facts that clearly indicate criminal

conduct[, but r]ather, even a combination of innocent facts, when taken

together, may warrant further investigation by the police officer.”         Id.

(quotation omitted).

      The officer may subsequently develop probable cause to place the

individual under arrest.

      “Probable cause to arrest exists when the facts and circumstances
      within the police officer’s knowledge and of which the officer has
      reasonably trustworthy information are sufficient in themselves to
      warrant a person of reasonable caution in the belief that an
      offense has been committed by the person to be arrested.”
      “Probable cause justifying a warrantless arrest is determined by
      the ‘totality of the circumstances.’” Furthermore, “probable cause
      does not involve certainties, but rather ‘the factual and practical
      considerations of everyday life on which reasonable and prudent
      [persons] act.’”

Commonwealth v. Williams, 941 A.2d 14, 27 (Pa. Super. 2008) (internal

citations omitted).

      In the present case, the trial court concluded the officers did not have

probable cause to arrest Simpson for DUI. The court emphasized that while

it was “uncontroverted” the truck parked in Simpson’s driveway “was the

vehicle that was involved in a hit and run,” there was no testimony that

Simpson was the driver or “was in actual physical control of that silver pick-

up prior to his arrest[,]” nor was there any testimony he was the registered


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owner of the pick-up. Trial Court Opinion, 5/10/2018, at 7. The trial court

distinguished those cases in which a person, not observed actually driving a

vehicle, was, nevertheless, found to be the driver or in actual physical control

of a vehicle for purposes of a DUI conviction.5 See id. at 8 (citing cases).

The trial court summarized its findings as follows:

       In this case, [Simpson] was not found asleep in the silver pick-up,
       was not standing next to or near the pick-up, was not sitting in a
       lane of traffic in the silver pick-up following an accident, nor was
       he near the pick-up in a location (like a restaurant or other
       establishment) which required him to drive to said location.
       Rather, in this case [Simpson] was observed coming from the rear
       of his residence. There was no testimony from any witness that
       identified [Simpson] as the driver, there was no testimony that
       [Simpson] held the keys to the silver pick[-]up in his hands.

              The uncontroverted testimony in this case is that a silver
       pick-up was involved in a hit and run, that the silver pick[-]up was
       sitting in [Simpson’s] drive way, and that immediately upon
       making contact with [Simpson] he was handcuffed, then simply
       based upon the observations of his person, he was placed under
       arrest for driving under the influence and transported to the
       hospital.    The uncontroverted testimony of the witnesses
       presented did not establish the identity of the driver of the silver
       pick-up. There was no investigation to determine whether or not
       [Simpson] had been operating the motor vehicle and was involved
       in a hit and run accident, there was no investigation to determine
       if anyone else was in the residence, on the property or had been
       in actual physical control of the motor vehicle or had operated the
       motor vehicle. Based upon the relevant case law this Court did
       not err in determining that there was no probable cause to arrest
       [Simpson]. This Court further determines that when the police
       entered [Simpson’s] property and immediately put [Simpson] in
____________________________________________


5 A person is guilty of DUI (general impairment) if he “drive[s], operate[s]
or [i]s in actual physical control of the movement of a vehicle after
imbibing a sufficient amount of alcohol such that the individual is rendered
incapable of safely driving, operating or being in actual physical control of the
movement of the vehicle.” 75 Pa.C.S. § 3802(a)(1) (emphasis supplied).

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      handcuffs that he was arrested and not detained and that the
      officers did not possess the requisite probable cause.

Id. at 8-9.

      The Commonwealth contends, however, the trial court “misapplied by

the   law     providing    for    deferential   review        of    police   probable-cause

determinations.”          Commonwealth’s        Brief    at        11   (footnote   omitted).

Specifically, it insists the trial court failed to consider the following “compelling

circumstantial evidence[ - ] that a silver pick-up truck missing a tire fled from

a collision, police followed a trail gouged in the road by the tireless wheel to

[Simpson’s] driveway, and that they found the intoxicated [Simpson] there

with his damaged silver pick-up truck missing a tire.” Id. at 14. Based upon

this circumstantial evidence, the Commonwealth argues, “the police correctly

made a practical, common-sense conclusion that it was probable [Simpson]

was driving his truck under the influence of alcohol while incapable of safe

driving.” Id. We agree.

      The trial court’s findings rely heavily on the court’s determination that

the officers conducted no investigation at the scene, but rather, immediately

placed Simpson in handcuffs and arrested him as soon as he appeared. See

Trial Court Opinion, 5/10/2018, at 8-9. The court emphasized the absence of

any testimony identifying Simpson as the driver of the pick-up, see id. at 7,

and   stated    the   officer’s    observations     regarding           Simpson’s   apparent

intoxication (smell of alcohol, bloodshot eyes, slurred speech, unsteady gait),

were made only after Simpson was “detained.” Id. at 5. The clear implication



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in the court’s opinion, is that the officers arrested Simpson before even

determining whether he was intoxicated.

      However, the testimony from the suppression hearing does not support

this sequence of events. In fact, upon our review of the transcript, we find no

mention of when, if at all, Simpson was handcuffed on the night in question.

Rather, both Officer Sides and Lieutenant Panagoplos testified that after

Simpson appeared from the rear of the home, he was “detained.” See N.T.,

3/1/2018, at 28-29, 50-51. Lieutenant Panagoplos stated that when Simpson

appeared, he asked Simpson if he was okay. See id. at 40. The lieutenant

testified:

      At that point I observed him, I listened to his speech pattern. I
      observed that his speech was slurred. I could smell an odor of an
      alcoholic beverage coming from his person. And that he was
      unsteady on his feet.

      … [Simpson was a] little more dishelved than he would normally
      be. He’s pretty clean-cut as you can see. And that night he
      seemed to be a little just out of sorts.

Id. at 41-42. Based on his observations, Lieutenant Panagoplos concluded

Simpson “was intoxicated[ and] had driven the vehicle.” Id. at 42. Under

cross-examination, the lieutenant agreed to the following: (1) Officer Sides

detained Simpson when he appeared from the rear of the residence; (2) after

that time, the lieutenant “made the observations” regarding Simpson’s

purported intoxication; and (3) “at that point based on everything …

[Lieutenant Panagoplos] arrested [] Simpson for suspected DUI[.]” Id. at 50-

51. Under the relevant case law, the officers were permitted to briefly detain



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Simpson to investigate when they found his damaged pick-up truck in his

driveway just 15 to 20 minutes after the initial 911 call regarding the hit and

run.6 The testimony reveals the officers observed Simpson displayed signs of

intoxication as soon as he appeared before them. See N.T., 41-42, 50-51.

Moreover, there was no testimony Simpson was immediately put in handcuffs

and arrested, before he displayed signs of intoxication.

       While there was no direct evidence presented that Simpson was driving

the pick-up at the time of the collision, the circumstantial evidence was

sufficient to supply probable cause for his arrest. Here, within minutes of the

hit and run, Officer Sides followed the gouge marks in the road from the

accident scene to Simpson’s nearby residence. Officer Sides knew Simpson,

a fellow officer, lived there and drove a silver pick-up. See id. at 36. In fact,

as soon as he recognized the vehicle was Simpson’s, Officer Sides “notified

[his] supervisor,” Lieutenant Panagoplos. Id. at 22. See id. at 26 (Officer

Sides explained, “[W]hen I saw the vehicle I recognized it and backed up and

notified my supervisor.”). As the lieutenant arrived, a neighbor of Simpson’s

told the officer that he needed to check on Simpson because Simpson was

standing in his driveway looking at his vehicle.      When the officers finally

____________________________________________


6 See N.T., 3/1/2018, at 42-43. Although the trial court notes there was no
testimony Simpson was the registered owner of the pick-up truck, Lieutenant
Panagoplos testified that when he met Officer Sides near the scene, the officer
told him both the vehicle and the residence belonged to Simpson. See id. at
36. The lieutenant also stated a neighbor of Simpson’s approached him, and
told him he needed to “check on [Simpson]” because he was “standing in the
driveway looking at his vehicle.” Id. at 37.

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observed Simpson, he displayed signs of intoxication. Under the totality of

the circumstances – including the fact that the officers knew Simpson lived

at that address and drove a silver pick-up, and considering the neighbor’s

concern for Simpson’s welfare - the officers had probable cause to believe

Simpson was the person who was driving the vehicle at the time of the

accident. It is important to emphasize that “probable cause does not require

certainty, but rather exists when criminality is one reasonable inference, not

necessarily even the most likely inference.” Commonwealth v. Salter, 121

A.3d 987, 994 (Pa. Super. 2015).

      The cases cited by the trial court in its opinion all involve challenges to

the sufficiency of the evidence, where the standard is proof beyond a

reasonable doubt.    See Commonwealth v. Toland, 995 A.2d 1242 (Pa.

Super. 2010), appeal denied, 29 A.3d 797 (Pa. 2011); Commonwealth v.

Brotherson, 888 A.2d 901 (Pa. Super. 2005), appeal denied, 899 A.2d 1121

(Pa. 2006); Commonwealth v. Williams, 871 A.2d 254 (Pa. Super. 2005);

Commonwealth v. Byers, 650 A.2d 468 (Pa. Super. 1994). Indeed, if this

were a trial, and Simpson was challenging the sufficiency of the evidence, we

would conclude the evidence did not demonstrate, beyond a reasonable doubt,

that he was the driver of the vehicle. However, presently, the Commonwealth

is appealing the court’s pretrial order granting suppression of the evidence

based upon a lack of probable cause for Simpson’s arrest. As stated above,

the standard for determining probable cause is whether “the facts and

circumstances within the police officer’s knowledge and of which the officer

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has reasonably trustworthy information are sufficient in themselves to warrant

a person of reasonable caution in the belief that an offense has been

committed by the person to be arrested.” Williams, supra, 941 A.2d at 27.

We conclude the evidence presented at the suppression hearing met that

standard.

      Accordingly, we reverse the order granting Simpson’s suppression

motion, and remand for further proceedings.

      Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/11/18




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