J-S81037-18

                                2019 PA Super 88


 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 MARK AMOS ALLEN                          :
                                          :
                    Appellant             :   No. 1203 MDA 2018

       Appeal from the Judgment of Sentence Entered June 29, 2018
    In the Court of Common Pleas of Adams County Criminal Division at
                      No(s): CP-01-CR-0001260-2017


BEFORE:     STABILE, J., DUBOW, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.:                          FILED MARCH 22, 2019

      Appellant, Mark Amos Allen, appeals from the judgment of sentence

entered in the Court of Common Pleas of Adams County. Herein, Appellant

contends the trial court erroneously denied his motion to suppress evidence

of his Driving Under the Influence of alcohol (“DUI”) obtained after a constable

had detained him until the Pennsylvania State Police arrived to initiate the DUI

investigation. We affirm.

      The trial court submits as a Pa.R.A.P. 1925(a) opinion its “Opinion on

Defendant’s Motion for Suppression,” which sets forth enumerated findings of

fact made after the court’s consideration of evidence offered at the February

15, 2018, suppression hearing:

          1. Constable J. Ryan Metcalf is a full time state constable
             elected in the Borough of New Oxford and has been a state
             constable for [eight] years.




____________________________________
* Former Justice specially assigned to the Superior Court.
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       2. Constable Metcalf’s responsibilities include the service of
          judicial process in the form of civil process for
          landlord/tenant actions, the service of subpoenas, and the
          arrest of individuals by warrant. Constable Metcalf is
          permitted to serve arrest warrants anywhere within the
          Commonwealth of Pennsylvania.


       3. On April 24, 2017, at approximately 8:00 p.m., Constable
          Metcalf and Constable Gates [from Erie County] were
          present at 2682 York Road, Straban Township, Adams
          County, Pennsylvania for the execution of arrest warrants
          for two individuals.


       4. Constable Metcalf and Constable Gates were in the living
          room of the residence at 2682 York Road[, which fronts
          Pennsylvania State Route 30], speaking with the occupant
          of the residence, Lorraine Witmer, concerning the arrest
          warrants. Constable Metcalf observed through a living room
          window a vehicle exit Route 30 at a high rate of speed,
          proceed airborne over the embankment, and enter the yard
          of the residence at 2682 York Road. The vehicle travelled
          to the rear of the residence through the yard and stopped
          between the residence and a trailer located in the rear of
          the residence.


       5. Constable Metcalf and Constable Gates went to the rear of
          the residence and observed Defendant [hereinafter
          “Appellant”] in the driver’s seat. There were no other
          passengers in the vehicle.


       6. As Constable Metcalf approached the vehicle, Appellant
          exited the vehicle and Constable Metcalf smelled a strong
          odor of alcohol and an odor of marijuana. Constable Metcalf
          observed Appellant to be confused, [slurring his speech,
          and] had balance issues [such that it was] the Constable’s
          opinion Appellant was manifestly under the influence of
          alcohol.


       7. At 8:04 p.m., Constable Metcalf contacted the Pennsylvania
          State Police and was advised a PSP Trooper would have an


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            extended estimated time of arrival because of other
            incidents.


         8. Constable Metcalf contacted the on-call Adams County
            Assistant District Attorney, Attorney Yannetti, who advised
            Constable Metcalf to detain Appellant for further
            investigation for suspicion of DUI by the Pennsylvania State
            Police.


         9. Constable Metcalf detained Appellant and placed him in the
            rear of his vehicle. Constable Metcalf testified that Appellant
            was not free to leave.


      10.   Constable Metcalf did not [give] Appellant . . . his Miranda
            warnings after Constable Metcalf detained him while
            awaiting the arrival of the Pennsylvania State Police.


      11.   On April 24, 2017 at 9:26 p.m., Trooper Haun with the
            Pennsylvania State Police arrived at 2682 York Road and
            handled the criminal investigation on behalf of the
            Pennsylvania State Police.


      12.   Ultimately, Trooper Haun charged Appellant with several
            counts of driving under the influence of alcohol or controlled
            substances and summary traffic violations.

Trial Court Opinion, 3/13/18, at 1-3.

      On March 13, 2018, the court granted in part and denied in part

Appellant’s motion to suppress evidence obtained from what he had argued

was Constable Metcalf’s unlawful detention of him.       Specifically, the court

granted Appellant’s motion to suppress statements made by Appellant during

his conversation with Constable Metcalf, but it denied Appellant’s motion to

suppress all other DUI-related evidence subsequently acquired by the

Pennsylvania State Police.


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      The case proceeded to a non-jury trial, which concluded with a guilty

verdict on one count of DUI. On June 29, 2018, the court sentenced Appellant

to a county intermediate punishment sentence of 60 months, six months of

which were to be served in a restrictive setting. This timely appeal follows.

      Appellant presents one question for our consideration:

      Was Appellant unlawfully detained when two constables initially
      arrested him for an alleged “breach of the peace,” but then held
      him in a caged vehicle for an additional hour and a half for the
      express purpose of having police investigate a suspected DUI, at
      the express direction of the District Attorney’s Office?

Appellant’s brief, at 4.

      The standard of review for the denial of a motion to suppress evidence

is as follows:

      We may consider only the Commonwealth's evidence 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. An appellate court, of course, is not bound
      by the suppression court's conclusions of law.

Commonwealth v. Livingstone, 174 A.3d 609, 619 (Pa. 2017) (citation

omitted).   Additionally, “our scope of review from a suppression ruling is

limited to the evidentiary record that was created at the suppression hearing.”

Commonwealth v. Rapak, 138 A.3d 666, 670 (Pa.Super. 2016) (citation

omitted).

      In challenging the partial denial of his motion to suppress, Appellant

essentially maintains that the suppression court deprived him of his Fourth



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Amendment rights when it declined to suppress evidence obtained after

constables unlawfully detained him for what amounted to nothing more than

a violation of the Motor Vehicle Code.1 To support this argument, he relies

upon Commonwealth v. Roose, 710 A.2d 1129 (Pa. 1998), where the

Pennsylvania Supreme Court held that constables lacked authority to enforce

the Motor Vehicle Code. We find Roose, however, to be factually inapposite,

as it involved a situation where a constable driving his private vehicle executed

a traffic stop after he observed what he believed to be an illegal left turn

committed by the defendant.

       In contrast, the facts of the present case centered around the

constables’ observation of, and response to, a single car accident, where a car

traveling at a high rate of speed dangerously left the roadway, went airborne

over an embankment, and careened well into the back portion of a residential

yard before coming to a stop just short of a trailer located behind the home.

N.T. at 8-10. A visibly dazed and ostensibly intoxicated 2 Appellant remained



____________________________________________


1We agree that Constable Metcalf effected a Fourth Amendment seizure of
Appellant.

2Constable Metcalf testified that his training for detection of illegal substances
and identification of impairment and intoxication was current, as he had most
recently completed “Institute for Law Enforcement Education” update courses
offered by the Adams County Department of Emergency Services. N.T. at 12.
For present purposes, this testimony is relevant not to the question of whether
Appellant was DUI but to the reasonableness of Constable Metcalf’s belief that
he had grounds to arrest Appellant for breach of the peace and public
drunkenness.

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behind the wheel with the engine running when Constables Metcalf and Gates

walked to the driver’s side window to encounter him. N.T. at 10.

      Confronted with these facts, it was Constable Metcalf’s testimony that

he had

      observed a breach of the peace and a commission of a crime in
      my presence, and I placed that in the hands of the appropriate
      primary first due [sic] law enforcement agency. . . . I knew I had
      the authority to arrest him if for no other reason than for public
      drunkenness and for obvious breach of peace. You know, the
      individual had committed an act that would tend to place other
      persons in danger that I observed.

N.T. at 21, 20.

      As such, the Commonwealth contends the constables’ detention of

Appellant was in response to a witnessed breach of the peace, which brings

this matter under the rationale expressed in Commonwealth v. Taylor, 677

A.2d 846 (Pa.Super. 1996). Taylor inquired into a constable’s authority to

arrest and search incident to arrest when he viewed what he believed to be

illegal narcotics in the possession of the defendant during an eviction.

      In vacating the trial court’s order suppressing all evidence, this Court

conducted a comprehensive review of “the nature of power possessed by

constables at common law” and held that “overwhelming authority supports

the proposition that constables possessed the power at common law to make

warrantless arrests for felonies and breaches of the peace.” Id. at 850, 851.




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“Furthermore,” we continued, “complying with the mandate of Leet,[3] we

have examined the statutes and found no provision abrogating that power.

Hence, since appellee’s possession of a controlled substance with intent to

deliver constitutes a felony . . . we are unable to escape the conclusion that

[the constable] was empowered to arrest appellee.” Id. at 851.4

       Our jurisprudence recognizes, therefore, that the common law confers

arrest powers upon constables for in-presence felonies or breaches of the

peace.    As the case sub judice involves no felony, we examine whether



____________________________________________


3 Commonwealth v. Leet, 641 A.2d 299, 301 (Pa. 1994) (holding “that the
common law powers of the sheriff include the power to enforce the motor
vehicle code, and that such powers have not been abrogated by statute or
otherwise.”).

4 Contrary to Appellant’s position, decisional law of this Commonwealth did
not render Constables Metcalf and Gates powerless to intervene merely
because Appellant’s conduct had involved the operation of a motor vehicle.
Taken to its logical conclusion, Appellant’s argument, if accepted, would mean
a constable or private citizen who physically removes a reckless driver from a
stationary vehicle to protect the immediate community does so to the
detriment of any ensuing Vehicle Code-based investigation.

Indeed, such an absolute proscription would represent an overly broad
application of Roose to situations like the one at bar, where a constable’s
detention of a stationary driver who has left the roadway represented not the
enforcement of the Vehicle Code but a response to an act one could reasonably
expect to excite violent resentment, and where the perceived breach of peace
was ongoing to the extent that a demonstrably reckless driver still behind the
wheel with the engine running may attempt to resume driving to the
disturbance of the community.




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Appellant’s conduct occurring within the presence of the constables

constituted a “breach of the peace” as understood at common law.

       Explicit guidance as to what acts represent “breaches of the peace” is

limited in our decisional law.5 Indeed, in Commonwealth v. Marconi, 64

A.3d 1036 (Pa. 2013), the Pennsylvania Supreme Court alluded to the

uncertain scope of this category of offenses in its discussion of sheriffs’ and

deputies’ arrest authority for Vehicle Code violations. Noting that the Court

had not previously identified violations that would qualify as authority-

triggering “breaches of the peace,” the Marconi Court described the “breach-

of-the-peace litmus” as “undefined” and “heavily context laden.” Id. at 1049

n.5 (criticizing precedent’s “loose incorporation of undefined peacekeeping

powers as the rational litmus” as the cause of uncertainties regarding sheriffs’

residual common law arrest authority under the Vehicle Code).

       Marconi further branded as an “oversimplification” a prior dissenting

opinion of this Court that suggested all Vehicle Code violations represented

breaches of the peace. Id. at 1049 n.6 (addressing Leet, 585 A.2d 1033,

1045 (Cirillo, J. dissenting)). In making this point, however, the Court may

have lent some insight into the contours of a breach of the peace, as it chose

a Vehicle Code violation ostensibly involving only the safety of the offending
____________________________________________


5Black's Law Dictionary defines the term as the criminal offense of creating a
public disturbance or engaging in disorderly conduct, particularly by making
an unnecessary or distracting noise. BREACH OF THE PEACE, Black's Law
Dictionary (10th ed. 2014). As discussed infra, however, recent jurisprudence
of this Court has adopted a more expansive understanding of the term.


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party as an example of a violation not readily within the ambit of the term

“breach of the peace.” Specifically the Court stated “there are Vehicle Code

violations constituting summary offenses which do not readily comport with

the conception of a breach of the peace, for example, the failure to employ a

seat belt. . . . cf. Atwater[v. City of Lago Vista], 532 U.S. [318,] 327 n.2 [

(2001)] (assuming, albeit without definitively deciding, that a seatbelt

violation is not a per se breach of the peace).” Id.

      Notwithstanding the lack of definitive guidance from the Pennsylvania

Supreme Court, our jurisprudence recently addressed the question of what

amounts to a breach of the peace as contemplated in our common law.

Specifically, in Commonwealth v. Copenhaver, --- A.3d ----, 2018

Pa.Super. 333 (filed December 7, 2018), we held that a sheriff’s deputy

possessed authority to stop a defendant for the summary violation of driving

with an expired registration sticker, as we rejected the defendant’s argument

that such a violation was not a breach of the peace.

      In reaching this decision, we found instructive our treatment of the

“breach of the peace” question in Commonwealth v. Lockridge, 781 A.2d

168, 169 (Pa.Super. 2001), aff’d on other grounds, 810 A.2d 1191 (2002),

where the defendant argued that a sheriff’s deputy lacked authority to issue

a citation for driving with a suspended license because the Vehicle Code

violation did not amount to a breach of the peace. We rejected the defendant’s

argument, as follows:




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      [The defendant's] interpretation of Leet illogically limits the
      authority of a trained deputy to issuing citations for only those
      violations of the Vehicle Code that involve behavior or action
      similar to those actions prohibited under the disorderly conduct
      provision of the Crimes Code. Were we to interpret Leet as
      narrowly as [the defendant] suggests, a deputy would be
      prohibited from enforcing [S]ection 1543(b) of the Vehicle Code,
      even if violated in his presence, because the operation of a motor
      vehicle while under suspension does not necessarily involve, ‘on
      any part of the driver, any intent to cause public inconvenience,
      annoyance, or alarm, or recklessly create risks thereof.’ 18
      Pa.C.S.A. § 5503. Such an interpretation of Leet defies logic, and
      we find [the defendant's] ‘breach of the peace’ argument devoid
      of merit.

Id. at 170 (citation and footnote omitted).

      On appeal, the Supreme Court affirmed our decision, but did so on a

different basis. The Supreme Court emphasized that “[t]he power to arrest,

as Leet instructs us, emanates from the common law. The filing of a citation,

however, concerns a process that is among those set out in the Pennsylvania

Rules of Criminal Procedure for commencing a summary action.” Lockridge,

810 A.2d at 1194. Thus, the Supreme Court found that our Rules of Criminal

Procedure authorized the deputy sheriff to file the citation charging the

defendant with a 75 Pa.C.S. § 1543(b) violation. Id. at 1196.

      Even though the Supreme Court affirmed our decision in Lockridge on

other grounds, Copenhaver found our analysis in that case salutary in

determining whether the violation of driving with an expired registration

sticker amounted to a breach of the peace justifying a stop:

      Although the Supreme Court affirmed our decision in Lockridge
      on other grounds, and noted that “it was not necessary for the
      Superior Court to pass upon [the defendant's] contention
      regarding a breach of the peace,” we find our analysis in that case

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       to be instructive. In particular, we described the defendant's
       breach of the peace argument in Lockridge to be “unconvincing
       and his interpretation of the Leet decision faulty.” Lockridge,
       781 A.2d at 169. We opined that the defendant's “interpretation
       of Leet illogically limits the authority of a trained deputy to issuing
       citations for only those violations of the Vehicle Code that involve
       behavior or action similar to those actions prohibited under the
       disorderly conduct provision of the Crimes Code.” Id. at 170. We
       also stated unequivocally that the defendant's “interpretation of
       Leet defies logic” and found its “breach of the peace” argument
       to be “devoid of merit.” Id. Given this guidance – where we
       determined that driving while under suspension is a breach of the
       peace – we cannot say in Appellant's case that driving with an
       expired registration is not. Accordingly, we are not persuaded
       that Appellant's first issue merits relief.

Copenhaver, 2018 PA Super 333 at *4.

       In light of this Court’s understanding of what constitutes a breach of the

peace for purposes of reviewing deputy sheriffs’ authority to conduct a Fourth

Amendment stop,6 it is clear that the patently disruptive, intrusive, and

dangerous nature of Appellant’s underlying conduct clearly aligns with the

“breach of the peace” concept in this context.

       Confronted with such conduct, the constables here acted within their

common law powers when they walked to the driver’s side window, detained

an ostensibly compromised Appellant in a safe manner, and immediately
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6 In view of relevant jurisprudence, we discern no basis for applying a different
scope to the concept of “breach of the peace” depending on whether a
sheriff’s, a deputy’s, a constable’s, or a private citizen’s authority to effect a
stop or arrest is under review. Indeed, in Leet, the Supreme Court observed
that a sheriff’s authority to arrest for a breach of the peace was coextensive
with that of a private citizen. See Marconi, 64 A.3d at 1041 (Noting “we
clarified that Leet acknowledged nothing more than sheriff’s circumscribed
authority to arrest for breaches of the peace and felonies committed in their
presence, power ‘no different from that of a private citizen.’”) (quoting
Commonwealth v. Dobbins, 934 A.2d 1170 (Pa. 2007)).

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called the proper authorities to investigate the incident.   Accordingly, we

conclude there is no merit to Appellant’s argument that his detention at the

hands of Constables Metcalf and Gates until the Pennsylvania State Police

arrived amounted to a violation of his Fourth Amendment rights requiring

suppression of all DUI evidence subsequently obtained.

     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/22/2019




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