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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                          Appellee

                     v.

CHRISTOPHER BELTZ

                          Appellant                  No. 3620 EDA 2017


      Appeal from the Judgment of Sentence Entered October 16, 2017
           In the Court of Common Pleas of Philadelphia County
              Criminal Division at No: CP-51-CR-0000405-2017


BEFORE: LAZARUS, STABILE, and McLAUGHLIN, JJ.

MEMORANDUM BY STABILE, J.:                           FILED MARCH 26, 2019

      Appellant, Christopher Beltz, appeals from the October 16, 2017

judgment of sentence imposing an aggregate one to two years of incarceration

followed by three years of probation for driving under the influence (“DUI”),

75 Pa.C.S.A. § 3802, and driving on a suspended license.        We vacate and

remand.

      On November 4, 2016, Officer Edwin Torres responded to a radio report

of an intoxicated man inside a vehicle. N.T. Hearing, 7/25/17, at 8-10. Officer

Torres observed Appellant in the driver’s seat of a car with the ignition turned

on. Id. at 10. The car was parked in a parking lot, but not within the lines of

a designated parking spot. Id. at 13. Officer Torres parked his car behind

Appellant’s, activated his overhead lights, and checked Appellant’s license

plate. Id. at 15-16. Subsequently, Officer Torres observed that Appellant
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appeared to be in and out of consciousness. Id. at 22. Officer Torres also

noted a strong odor of PCP coming from the vehicle. Id. at 10, 18-19. Upon

speaking with Appellant, Officer Torres observed bloodshot eyes and slurred

speech. Id. at 26-27. Officer Torres had to ask Appellant for his driver’s

license and vehicle registration several times. Id. at 26. Three women were

also in the vehicle, but none of them appeared to be intoxicated. Id. at 19,

22. Officer Torres asked Appellant to step out of the vehicle and Appellant

complied, but he stumbled. Id. at 18. Subsequently, Appellant consented to

a blood draw. The consent form provided, among other things, that the fact

of a refusal of the blood test could be admitted into evidence in subsequent

legal proceedings. Id. at 39-40. See 75 Pa.C.S.A. § 1547(e).1

       Appellant    was    arrested     and    charged   with   DUI   (75   Pa.C.S.A.

§ 3802(a)(1), (d)(1), and (d)(2). This was Appellant’s third offense under

subsections (d)(1) and (2). The Commonwealth also charged Appellant with



____________________________________________


1   Section 1547(e) provides:

       (e) Refusal admissible in evidence.--In any summary
       proceeding or criminal proceeding in which the defendant is
       charged with a violation of section 3802 or any other violation of
       this title arising out of the same action, the fact that the defendant
       refused to submit to chemical testing as required by subsection
       (a) may be introduced in evidence along with other testimony
       concerning the circumstances of the refusal. No presumptions
       shall arise from this evidence but it may be considered along with
       other factors concerning the charge.

75 Pa.C.S.A. § 1547(e).

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driving on a suspended license. 75 Pa.C.S.A. § 1543. After the conclusion of

the suppression hearing, the case proceeded immediately to a nonjury trial.

The trial court found Appellant guilty of all charges. On October 16, 2017, the

trial court imposed sentence as set forth above. This timely appeal followed.

       Appellant raises two issues:

              1. Did not the lower court err in denying Appellant’s motion
                 to suppress physical evidence where Appellant was
                 subjected to coercive warnings before he consented to
                 have his blood drawn?

              2. Did not the lower court err in denying Appellant’s motion
                 to suppress physical evidence where Appellant was
                 subjected to an investigatory detention without
                 reasonable suspicion?

Appellant’s Brief at 3.

       We confine our analysis to the second issue, which we find to be

dispositive. Appellant claims Officer Torres initiated a Terry2 stop before he

had reasonable suspicion to do so. Our standard of review is as follows:

             [An appellate court’s] standard of review in addressing a
       challenge to the denial of a suppression motion 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 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.      Where ... the appeal of the
       determination of the suppression court turns on allegations of
       legal error, the suppression court’s legal conclusions are not
____________________________________________


2   Terry v. Ohio, 392 U.S. 1 (1968).

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       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 [ ] plenary
       review.

Commonwealth v. Jones, 121 A.3d 524, 526–27 (Pa. Super. 2015), appeal

denied, 135 A.3d 584 (Pa. 2016). Our scope of review is confined to the

record of the suppression hearing. In re L.J., 79 A.3d 1073, 1087 (Pa. 2013).

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

(OAJC), our Supreme Court held that a police officer initiates an investigative

detention when he pulls up to a vehicle that is already stopped and activates

his overhead lights. Id. at 618-25.3 In essence, no reasonable person would

feel free to leave after a police officer activates a police vehicle’s emergency

lights. Id.; see also Commonwealth v. Thran, 185 A.3d 1041, 1045 (Pa.

Super. 2018), appeal denied, 195 A.3d 558 (Pa. 2018). Accordingly, Officer

Torres’ detention of Appellant was valid if and only if Officer Torres had

reasonable suspicion when he activated his vehicle’s overhead lights.

              In order to determine whether the police officer had
       reasonable suspicion, the totality of the circumstances must be
       considered. In making this determination, we must give due
       weight to the specific reasonable inferences the police officer is
       entitled to draw from the facts in light of his experience. Also, the
       totality of the circumstances test does not limit our inquiry to an
       examination of only those facts that clearly indicate criminal
       conduct. Rather, even a combination of innocent facts, when
       taken together, may warrant further investigation by the police
       officer.



____________________________________________


3   Six Justices joined this portion of the opinion.

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Commonwealth v. Foglia, 979 A.2d 357, 360 (Pa. Super. 2009) (en banc)

(internal citations and quotation marks omitted), appeal denied, 990 A.2d

727 (Pa. 2010).     An anonymous tip cannot be the sole basis for an

investigative detention, but a tip corroborated by independent police

investigation may supply reasonable suspicion. Commonwealth v. Brown,

996 A.2d 473, 477 (Pa 2010). “Because an anonymous tip typically carries a

low degree of reliability, more information is usually required before

investigating officers develop the reasonable suspicion needed to support an

investigatory stop of a suspect.” Commonwealth v. Fell, 901 A.2d 542, 545

(Pa. Super. 2006). In Commonwealth v. Zahir, 751 A.2d 1153 (Pa. 2000),

our Supreme Court explained that, in the case of an anonymous informant,

“the range of details provided and the prediction of future behavior are

particularly significant, as is corroboration by independent police work.” Id.

at 1157.      “[T]he necessary corroboration may also be supplied by

circumstances that are independent of the tip, for example, observation of

suspicious conduct on the part of the suspect.” Id.

     In Commonwealth v. Wimbush, 750 A.2d 807 (Pa. 2000), our

Supreme Court found reasonable suspicion lacking in two consolidated cases

involving anonymous tips. In one, the informant said that a man named Tony

would drive a white van with a given license plate number on Piney Ridge

Road, and that he would have drugs in his possession. Id. at 809. Police

verified that a man named Anthony Wimbush owned the van with the given


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plate number and located his address.       The local police already suspected

Wimbush of drug activity. Id. at 810. Police observed Wimbush driving his

van along Piney Ridge Road and stopped him at an intersection. In the second

case, an anonymous informant stated that a black male in a white shirt and

shorts would exit a certain public housing complex with drugs in his possession

and get on a girl’s black bicycle.      Police observed a man, Lance White,

matching the description leave the complex and get on the black bicycle, and

stopped him.

      In both cases, our Supreme Court noted the absence of independent

corroboration of the tipster’s allegations of criminal conduct.      Id. at 812.

Regarding defendant Wimbush, police observed no suspicious activity on his

part and, despite the suspicions of local police, they had no independent basis

for concluding that Wimbush was engaging in criminal conduct before they

stopped him. Id. at 813. As to White, the fact that he matched the very

general description given—a black man in white clothes—and that he got on

the described bicycle, was not indicative of criminal activity. Id. at 812. The

Wimbush Court relied in part on Commonwealth v. Jackson, 698 A.2d 571

(Pa. 1997), in which a report of a man in a green jacket carrying a gun was

insufficient, without more, to support reasonable suspicion. Id. at 811.

      In Fell, on the other hand, this Court found reasonable suspicion where

police corroborated a tip that “predicted that a particular car presently in route

from New York and transporting three identified occupants and a shipment of


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drugs would make its drop-off at a particular Edwardsville apartment in the

late afternoon or evening.” Fell, 901 A.2d at 547.

      Instantly, when Officer Torres activated his overhead lights, all he knew

was that a man was sitting in a parked vehicle with the ignition turned on, and

the vehicle was not parked in a designated spot. The record does not indicate

that Officer Torres had a description of the driver or the vehicle. Officer Torres

observed no illegal activity and gathered no evidence, independent of the tip,

that the person in the driver’s seat was intoxicated.             Officer Torres’

incriminating observations—including an odor of PCP coming from the vehicle,

Appellant’s bloodshot eyes, slurred speech, and apparent nodding in and out

of consciousness—came after Officer Torres activated his overhead lights.

Pursuant to Livingstone and Thran, a police officer must have reasonable

suspicion prior to activating overhead lights.

      The Commonwealth relies on Commonwealth v. Smith, 904 A.2d 30

(Pa. Super. 2006), wherein police received separate tips from identified

informants describing erratic driving and loud music emanating from a red

SUV. Id. at 36. Police arrived on the scene within minutes of the tips and

found a vehicle matching the given description “at the precise location

described by the second caller, parked crookedly, with the front tire touching

the curb and the rear tire two feet from the curb, with the stereo playing loudly

and the key in the ‘on’ position.” Id. The Commonwealth’s reliance on Smith

is unavailing because Smith involved tips from two identified informants.


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Smith did not hold that a crookedly parked vehicle with the ignition turned on

creates reasonable suspicion.

      The Commonwealth also cites Zahir, in which an unidentified informant

told police that a man in a green jacket and blue jeans was selling narcotics

at a specific intersection in Philadelphia. Zahir, 751 A.2d at 1155. Two and

one-half hours after receiving the tip, police observed the defendant at the

specified intersection wearing clothing that matched the description.          Id.

When the defendant observed the police, he walked into a restaurant and

dropped something on the floor. Id. When the police parked their vehicle in

front of the restaurant, the defendant went back inside and retrieved

something from the floor.       Id. at 1155-56.    Police then approached the

defendant and asked what was in his pocket. Id. at 1156. This Court held

that police had reasonable suspicion, inasmuch as they corroborated the

location (a high crime area) and description of the suspect and, in addition,

observed behavior consistent with discarding contraband when the suspect

saw them. Id.at 1157. Further, the suspect appeared to reach for a weapon

as police approached. Id. Thus, the Commonwealth’s reliance on Zahir is

misplaced because police in that case gathered incriminating evidence

independent of the tip.

      Finally,   the   Commonwealth    argues     that   we   should   not   apply

Livingstone because Appellant was bordering on unconscious and therefore

would not have appreciated that he was not free to leave. Commonwealth’s


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Brief at 10 n.4. Assuming without deciding that the record would support such

a finding, our result would not change because the Commonwealth’s argument

proposes a subjective standard for determining whether an investigative

detention occurs. The test is an objective one. Commonwealth v. Lyles,

97 A.3d 298, 302-03 (Pa. 2014) (“[T]he United States Supreme court and this

Court have employed an objective test entailing a determination of whether a

reasonable person would have felt free to leave or otherwise terminate the

encounter.”).

      In summary, Officer Torres initiated an investigative detention, pursuant

to Livingstone and Thran, before his investigation revealed any evidence of

Appellant’s intoxication. The detention was therefore unlawful and the trial

court committed an error of law in denying Appellant’s motion to suppress

evidence gathered from the stop.

      Judgment of sentence vacated.          Case remanded.        Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/26/19




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