J-S66043-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

THUONG M. NGUYEN

                            Appellant                 No. 1849 MDA 2015


            Appeal from the Judgment of Sentence October 8, 2015
               In the Court of Common Pleas of Centre County
             Criminal Division at No(s): CP-14-CR-0000080-2015


BEFORE: BOWES, J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                      FILED SEPTEMBER 13, 2016

        Thuong M. Nguyen (“Appellant”) appeals from the judgment of

sentence entered in the Centre County Court of Common Pleas following his

bench trial convictions for driving under the influence (“DUI”) 1 and his

summary offense of disregarding a traffic lane.2 We affirm.

        The relevant facts and procedural history of this appeal are as follows.

On January 4, 2015, at approximately 1:00 a.m., Pennsylvania State Police

Trooper Elizabeth Rita Clatch was operating her marked police vehicle when

she observed Appellant’s vehicle cross over the double yellow lines twice.

She activated her video recorder and followed Appellant, who varied his

____________________________________________


1
    75 Pa.C.S. § 3802(a)(1) and (b).
2
    75 Pa.C.S. § 3309.
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speed between 35 and 45 miles per hour and partially crossed over the

yellow lines on three more occasions.             Based on her experience with DUI

offenses and the totality of the circumstances, Trooper Clatch believed

Appellant was DUI and pulled over his vehicle.               She proceeded to give

Appellant a breathalyzer test.

        Appellant was arrested and charged with DUI (general impairment),

DUI (high rate of alcohol, Bac. 0.10-0.16), disregarding a traffic lane, and

careless driving.3     On April 2, 2015, Appellant entered into a guilty plea,

which he subsequently withdrew.                On August 6, 2015, Appellant filed a

motion to suppress evidence, alleging Trooper Clatch did not have probable

cause to justify her stop, and requesting the trial court to suppress all

evidence obtained in violation of his constitutional rights.         On August 18,

2015, the court conducted a hearing on Appellant’s motion to suppress. The

court denied Appellant’s suppression motion, conducted a bench trial,

convicted Appellant of the aforementioned convictions, and acquitted him of

careless driving.

        On October 8, 2015, the court sentenced Appellant to fifteen (15) days

to six (6) months of incarceration, plus fines and costs.           On October 23,

2015, Appellant filed a timely notice of appeal.4


____________________________________________


3
    75 Pa.C.S. § 3714(a).
4
    Both Appellant and the trial court complied with Pa.R.A.P. 1925.



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      Appellant raises the following issues for our review:

          WHETHER THE TRIAL COURT ERRED AND ABUSED ITS
          DISCRETION IN DENYING APPELLANT’S MOTION TO
          SUPPRESS EVIDENCE?

          WHETHER THE TRIAL COURT MISAPPLIED THE LAW IN
          DENYING APPELLANT’S MOTION TO SUPPRESS EVIDENCE?

Appellant’s Brief at 7.

      In his combined issues, Appellant argues that, because Trooper Clatch

did not have reasonable suspicion to stop Appellant’s vehicle, the trial court

erred by denying his suppression motion. We disagree.

      When addressing a challenge to a trial court’s denial of a suppression

motion, our standard of review is “whether the factual findings are

supported by the record and whether the legal conclusions drawn from these

facts are correct.”       Commonwealth v. Hawkins, 45 A.3d 1123, 1126

(Pa.Super.2012), appeal denied, 53 A.3d 756 (Pa.2012) (internal citation

omitted). Further:

          [w]hen reviewing the rulings of a suppression court, we
          must consider only the evidence of the prosecution 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 findings of the
          suppression court, we are bound by those facts and may
          reverse only if the legal conclusions drawn therefrom are
          in error.

Id. (citations and internal quotation marks omitted).         Additionally, when

reviewing the suppression court’s rulings, we consider only the suppression

record.   In re L.J., 79 A.3d 1073, 1085 (Pa.2013) (“it is inappropriate to

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consider trial evidence as a matter of course, because it is simply not part of

the suppression record, absent a finding that such evidence was unavailable

during the suppression hearing.”).

      Pennsylvania recognizes three types of interactions between police

officers and citizens.   Commonwealth v. Stevenson, 832 A.2d 1123,

1126-27, (Pa.Super.2003). “Interaction between citizens and police officers,

under search and seizure law, is varied and requires different levels of

justification depending upon the nature of the interaction and whether or not

the citizen is detained.” Id.

         The first category, a mere encounter or request for
         information, does not need to be supported by any level of
         suspicion, and does not carry any official compulsion to
         stop or respond. The second category, an investigative
         detention, derives from [Terry v. Ohio, 392 U.S. 1, 8, 88
         S. Ct. 1868, 1873, 20 L. Ed. 2d 889 (1968)] and its
         progeny: such a detention is lawful if supported by
         reasonable suspicion because, although it subjects a
         suspect to a stop and a period of detention, it does not
         involve such coercive conditions as to constitute the
         functional equivalent of an arrest. The final category, the
         arrest or custodial detention, must be supported by
         probable cause.

Commonwealth v. Gonzalez, 979 A.2d 879, 884 (Pa.Super.2009) (quoting

Commonwealth v. Moyer, 954 A.2d 659, 663 (Pa.Super.2008) (en banc)

(quoting Commonwealth v. Smith, 836 A.2d 5, 10 (Pa.2003))).

      “Police must have reasonable suspicion that a person seized is

engaged in unlawful activity before subjecting that person to an investigative

detention.”    Commonwealth v. Goldsborough, 31 A.3d 299, 306


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(Pa.Super.2011),   appeal   denied,    49   A.3d     442    (Pa.2012)   (quoting

Commonwealth v. Cottman, 764 A.2d 595 (Pa.Super.2000)).

        Reasonable suspicion exists only where the officer is able
        to articulate specific observations which, in conjunction
        with    reasonable     inferences  derived    from    those
        observations, led him reasonably to conclude, in light of
        his experience, that criminal activity was afoot and that
        the person he stopped was involved in that activity.
        Therefore, the fundamental inquiry of a reviewing court
        must be an objective one, namely, whether the facts
        available to the officer at the moment of intrusion warrant
        a [person] of reasonable caution in the belief that the
        action taken was appropriate.

Id.   (quoting   Commonwealth         v.    Jones,    874     A.2d   108,   116

(Pa.Super.2005) (internal citations and quotation marks omitted)).

      At the suppression hearing, the court made the following findings of

fact before denying Appellant’s motion to suppress evidence:

        The trooper was trained in DUI detection…. She has
        experience in DUI investigation and stops…. [S]he was
        traveling north on State Route 550 when she observed
        [Appellant’s] vehicle prior to activating her camera…. She
        witnessed [Appellant’s] driver’s side go over the double
        yellow line twice, driver’s side wheels at least. Once she
        activated the video, the [c]ourt observed the vehicle go
        over the yellow lines three times from my observations.
        The trooper testified [that Appellant varied his] speed….
        She also followed [Appellant] for several miles.

        She pulled [Appellant] over [based] on the totality of the
        circumstances for a DUI investigation. It was a Saturday
        night going into early Sunday morning, [and Appellant
        was] crossing over the double yellow lines[,] hitting the
        double lines[,] and [varying his] speed…. The [c]ourt finds
        that the trooper did have probable cause for count 3,
        disregard to traffic lanes, to pull over [Appellant] and also
        had reasonable suspicion to pull [Appellant] over for
        possible [DUI].

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N.T., 8/18/2015, at 25-26.

     The suppression court found that Trooper Clatch had reasonable

suspicion that Appellant was DUI and probable cause that Appellant

disregarded traffic lanes to subject Appellant to an investigative detention.

The court’s findings are supported by the record, and its legal conclusions

drawn therefrom are not in error.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/13/2016




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