J-A22022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                   v.

NICOLE MARIE GOLDBACH

                        Appellant                     No. 96 MDA 2016


        Appeal from the Judgment of Sentence December 16, 2015
            In the Court of Common Pleas of Lancaster County
           Criminal Division at No(s): CP-36-CR-0002154-2015


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                         FILED OCTOBER 17, 2016

     Appellant, Nicole Marie Goldbach, appeals from the judgment of

sentence entered by the Honorable Donald R. Totaro, Court of Common

Pleas of Lancaster County. Goldbach contends that the Commonwealth

violated her right against unlawful search and seizure. After careful review,

we affirm.

     At approximately 2:45 a.m. on December 24, 2014, the Lancaster

County emergency dispatch call center received the following telephone call:

     My name is Terry. I’m the manager at the Sheetz in Millersville. I
     was just leaving my shift and saw a lady passed out in a car, and
     now she is inside the store ordering food. I didn’t - - I just didn’t
     know if the police officer wants to swing by and keep an eye on
     her. She’s driving a Volkswagen Beetle with a tan roof. I saw her
     get out of the car. She stumbled.
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N.T., Suppression Hearing, 12/16/15, at 7. Based upon that telephone call,

the dispatch call center alerted Sergeant Brian Tatara with the following

information:

        Can you go out to the Sheetz? Caller is the manager, observed a
        female sleeping in a yellow Beetle, which is parked out front. It’s
        a ragtop. She got out, stumbled inside the store, where she is
        now. Not sure if she’s 37 or having medical issues. White female,
        blonde hair, light green sweatshirt and jeans.

Id., at 6-7. Sergeant Tatara immediately proceeded to the Sheetz, where he

observed the described yellow Volkswagen Beetle, driven by Goldbach,

leaving    the   parking    lot.   Sergeant      Tatara    followed    the   vehicle   for

approximately one minute and initiated a traffic stop for suspicion of Driving

under the Influence (“DUI”). Goldbach was charged with one count of DUI:

Highest      Rate    of    Alcohol,     and      one      count   of    DUI:     General

Impairment/Incapability of Driving Safely.1

        Goldbach moved to suppress evidence gained during the traffic stop.

The court held a suppression hearing. Sergeant Tatara testified that “37” is

code for an intoxicated person, and that in his 16 years of experience, he

noted that gas stations were generally known locations for intoxicated

travelers late at night. Following the hearing, the suppression count denied

Goldbach’s motion to suppress. The parties proceeded to a stipulated bench

trial, wherein the trial court found Goldbach guilty on both counts. This

timely appeal followed.
____________________________________________


1
    75 Pa. C.S.A. § 3802(c) and (a), respectively.



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      On appeal, Goldbach challenges the suppression court’s denial of her

motion to suppress. She contends that Sergeant Tatara did not have

reasonable suspicion to perform the underlying traffic stop, and that

therefore all evidence obtained as a result of the traffic stop should be

excluded as fruit of the poisonous tree. See Appellant’s Brief, at 7. We

disagree.

      Our scope and standard of review in considering the trial court’s denial

of a motion to suppress is

      limited to determining 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 [sic]
      when read in the context of the record as a whole. Where the
      suppression court’s factual findings are supported by the record,
      [the appellate court is] bound by [those] findings and may
      reverse only if the court’s legal conclusions are erroneous.

Commonwealth v. Jones, 121 A.3d 524, 526-527 (Pa. Super. 2015)

(citation omitted). “Further, [i]t is within the suppression court’s sole

province as factfinder to pass on the credibility of witnesses and the weight

to be given their testimony.” Commonwealth v. Houck, 102 A.3d 443, 455

(Pa. Super. 2014) (citations omitted).

      The suppression court’s factual findings are supported by the record.

Therefore, we proceed to examine the trial court’s application of the relevant

law to the facts at hand.



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      The Fourth Amendment of the United States Constitution guarantees,

“[t]he right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated…”

U.S. Const. amend. IV. Similarly, the Pennsylvania Constitution assures

citizens of our Commonwealth that “[t]he people shall be secure in their

persons, houses, papers and possessions from unreasonable searches and

seizures….” Pa. Const. art. I, § 8. Further, “[t]he reasonableness of a

government intrusion varies with the degree of privacy legitimately expected

and the nature of the governmental intrusion.” Commonwealth v. Fleet,

114 A.3d 840, 844 (Pa. Super. 2015) (citation omitted).

      Here, both parties agree that Sergeant Tatara placed Goldbach under

investigative   detention   when   he      performed   the   traffic   stop.   “[A]n

“investigative detention” must be supported by reasonable suspicion; 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.” Id., at 845 (citation omitted).

      Goldbach’s sole issue on appeal is whether Sergeant Tatara had

reasonable suspicion or probable cause that criminal acts or violations of the

Motor Vehicle Code had been committed to justify the investigatory traffic

stop. See Appellant’s Brief, at 7. Goldbach contends that the non-specific

information provided by the Sheetz manager was insufficient to form

reasonable suspicion because it only implied Goldbach may have been


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intoxicated, and Sergeant Tatara’s subsequent observations did not bolster

this implication. See id., at 6.

      A police officer is permitted to perform an investigative stop of a

vehicle upon reasonable suspicion of criminal activity or a Vehicle Code

violation. See 75 Pa.C.S.A. § 6308(b). In determining whether a police

officer has sufficient reasonable suspicion to perform an investigatory traffic

stop, this Court has summarized the requirements as follows:

      Reasonable suspicion is a less stringent standard than [the]
      probable cause necessary to effectuate a warrantless arrest, and
      depends on the information possessed by the police and its
      degree of reliability in the totality of the circumstances. In order
      to justify a seizure, a police officer must be able to point to
      specific and articulable facts leading him to suspect criminal
      activity is afoot. In assessing the totality of the circumstances,
      courts must afford due weight to the specific reasonable
      inferences drawn from the facts in light of the officer’s
      experience[,] and acknowledge that innocent facts, when
      considered collectively, may permit the investigative detention.

Commonwealth v. Brown, 996 A.2d 473, 477 (Pa. 2010) (citations

omitted). Further,

      [t]o have reasonable suspicion, police officers need not
      personally observe the illegal or suspicious conduct, but may rely
      upon the information of third parties, including “tips” from
      citizens. Naturally, if a tip has a relatively low degree of
      reliability more information will be required to establish the
      requisite quantum of suspicion….

                                       …

      However, a tip from a known informer may carry enough indicia
      of reliability for the police to conduct an investigative stop, even
      though the same tip from an anonymous informant would likely
      not have done so. Indeed a known informant places himself at


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      risk of prosecution for filing a false claim if the tip is untrue,
      whereas [an] unknown informant faces no such risk.

Commonwealth v. Lohr, 715 A.2d 459, 461-462 (Pa. Super. 1998)

(citations   and   internal   quotation    marks   omitted).   When   third   party

observations provide the basis for a police officer’s reasonable suspicion, a

suppression court must examine the “informant’s reliability, veracity, and

basis of knowledge, as well as whether the information supplied to the police

contained ‘specific and articulable facts’ that would lead the police to believe

that criminal activity may be afoot.” Commonwealth v. Albert, 767 A.2d

549, 552 (Pa. Super. 2001) (citations omitted).

      Here, the information provided to Sergeant Tatara by Lancaster

County dispatch was provided by an identified source, Terry Frey, the

manager of the Millersville Sheetz gas station. Frey reported that Goldbach

was “passed-out” in her vehicle and “stumbled” into the gas station. Frey

requested that police officers respond to “keep an eye on her.” While Frey

did not specifically state that he believed that Goldbach was intoxicated, it is

obvious that Frey inferred his suspicion that Goldbach was intoxicated.

Contrary to Goldbach’s assertions, we find that Frey’s observations were

sufficiently specific and reliable for Sergeant Tatara to form reasonable

suspicion of intoxication. See Commonwealth v. Korenkiewicz, 743 A.2d

958, 964 (Pa. Super. 1999) (“Established Pennsylvania law generally accepts

that intoxication is a condition within the understanding or powers of

observation of ordinary citizens.”)



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      Additionally, Sergeant Tatara testified that he had been a police officer

for sixteen years and had participated in hundreds of DUI investigations.

Based upon the information relayed to Sergeant Tatara from Lancaster

County dispatch, Sergeant Tatara drew upon his experience, as well as his

knowledge that intoxicated persons frequent the Sheetz gas station at 2:30

a.m., to conclude that Goldbach may be intoxicated. Sergeant Tatara

received this information via the dispatch center, and spotted the described

vehicle in the gas station’s parking lot within minutes of Frey’s initial

telephone    call.   Because   the   information   about   Goldbach’s   alleged

intoxication came from a known caller, there is no requirement that

Sergeant Tatara independently observe signs of intoxication before forming

reasonable suspicion. Under the totality of the circumstances, Sergeant

Tatara’s investigatory detention of Goldbach was supported by reasonable

suspicion. Therefore, we find that Goldbach’s argument to the contrary is

meritless.

      Judgement of Sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/2016



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