J-S31007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                            IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                            Appellee

                       v.

STEVEN R. SEKELY,

                            Appellant                       No. 1740 MDA 2015


             Appeal from the Judgment of Sentence June 24, 2015
               In the Court of Common Pleas of Wyoming County
              Criminal Division at No(s): CP-66-CR-0000205-2014


BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                                      FILED MAY 02, 2016

       Appellant, Steven R. Sekely, appeals from the judgment of sentence

entered on June 24, 2015, in the Wyoming County Court of Common Pleas.

After careful review, we vacate the judgment of sentence, reverse the order

denying     Appellant’s     suppression        motion,   and   remand   for   further

proceedings.

       The trial court made the following findings of fact:

       1. [Appellant was] charged with a driving under the influence …
       and appeared [on March 11, 2014] without legal counsel at the
       office and court of the Honorable Judge David Plummer located
       in Factoryville, Pa. for a Preliminary Hearing.

       2. Upon learning that [Appellant] had presented himself without
       legal counsel Judge Plummer advised him to go to the Wyoming
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*
    Retired Senior Judge assigned to the Superior Court.
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     County Courthouse to make application for the legal services of
     the Wyoming County Public Defender.

     3. Following Judge Plummer’s directive, [Appellant] drove
     himself to the Wyoming County Courthouse, some miles away
     from Judge Plummer’s court.

     4. In that it was the policy of Wyoming County that applications
     for the service of the public defender were submitted through
     the Wyoming County Adult Probation Department, [Appellant]
     was directed to the Adult Probation Department.

     5. [Appellant] appeared by himself at about 10:50 A.M. on
     March 11, 2014, to the Adult Probation Office whereupon he was
     brought into the office of Jerome Tonti, Wyoming County Adult
     Probation Officer.

     6. Officer Tonti, upon coming into close contact with [Appellant],
     immediately detected an odor of alcoholic beverage emanating
     from [Appellant]’s mouth.

     7. Thereupon Officer Tonti questioned [Appellant] as to where he
     had come from and [Appellant] admitted that he had come from
     Judge Plummer’s office at Judge Plummer’s request.

     8. Before and at this time Tonti believed that [Appellant] was on
     bail for the driving under the influence charge, and so Tonti
     administered a portable breathalyzer test on [Appellant] which
     registered positive for alcoholic beverage on [Appellant]’s
     breath.

     9. Tonti notified the Tunkhannock Police Department through
     dispatch and Patrolman Dustin Cokely arrived at the probation
     office five to ten minutes later.

     10. Tonti neither arrested [Appellant] nor detained him but
     instead advised him it would be in his best interest if he
     remained at the probation office.

     11. Tonti did not ask [Appellant] for his … car keys but upon
     questioning him, ascertained where his car was parked.




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     12. Tonti’s office door was only partially closed during the
     interview process which ultimately resulted in [Appellant] being
     approved for the public defender’s legal service.

     13. Patrolman Cokely spoke to Tonti about his client [Appellant].

     14. Patrolman Cokely could detect a strong odor of alcoholic
     beverage on [Appellant’s] breath and observed him to have red
     glassy eyes.

     15. Upon questioning of [Appellant] by Officer Cokely,
     [Appellant] admitted to consuming half a dozen beers the night
     before.

     16. As a result of observing [Appellant] and his admitting to
     consumption of beers, Patrolman Cokely formed an opinion that
     [Appellant] was under the influence of Alcohol to a degree which
     rendered him incapable of safe driving.

     17. Cokely had [Appellant] attempt to complete field sobriety
     tests, such as the walk and turn, which he failed after which
     Cokely placed [Appellant] into his custody.

     18. Upon taking [Appellant] into his custody, Patrolman Cokely
     walked him to his car about half a block away, locked the car
     and kept the car keys [Appellant] had on him to the said car.

     19. [Appellant] submitted to a chemical test of his blood which
     showed an alcohol content of 0.10%.

     20. [Appellant] was in fact not on a bail status in that he had
     been summoned to the preliminary hearing by mailing of the
     criminal complaint and summons.

     21. [Appellant] believed that Tonti had a “Probation Officer” shirt
     on and was carrying a side arm.

     22. [Appellant] testified that he believed he could not walk out of
     Tonti’s office was not given Miranda rights before Tonti’s
     questioning him and was not advised of his right to consult a
     Lawyer by Tonti.




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       23. Upon cross examination, [Appellant] admitted that Officer
       Cokely advised him he was formally under arrest and handcuffed
       him.

       24. Also upon cross examination, [Appellant] admitted that he
       had had three prior arrests for charges of driving under the
       influence.

       25. [Appellant] admitted that although he believed Probation
       Officer’s Tonti’s office door was closed he never attempted to
       leave the probation office.

Trial Court Opinion, 12/22/14, at 1-4 (unnumbered).1

       Following a bench trial on March 16, 2015, Appellant was convicted of

driving under the influence (“DUI”) pursuant to 75 Pa.C.S. § 3802(a)(1)

(general impairment).         As this was Appellant’s second offense, the trial

court, on June 24, 2015, sentenced Appellant to a term of five days to six

months of incarceration and a $500 fine. Post-sentence motions were filed

and denied, and this timely appeal followed.2

       On appeal, Appellant raises the following issues for this Court’s

consideration:

       1. Does the policy of Wyoming County, requiring an indigent
       defendant to apply for a public defender through the offices of

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1
   The December 22, 2014 trial court opinion was filed in response to and for
disposition of Appellant’s omnibus pretrial motion. At Count II of the
motion, Appellant sought to have the evidence against him suppressed
because he alleged, inter alia, that he was illegally seized and searched.
Omnibus Pre-trial Motion, 7/25/14, at 2-5 (unnumbered).
2
  The trial court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).



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      adult probation and parole violate 16 P.S. §9960.6 (the Public
      Defender’s Act)?

      2. Does the policy of Wyoming County, which requires indigent
      defendants to apply for a public defender through the office of
      adult probation, violate appellant’s rights under the VIth and
      XIVth Amendments of the United States Constitution and Article
      1, Section 9 of the Pennsylvania Constitution?

      3. Does the policy of Wyoming County, which requires indigent
      defendants to apply for a public defender through the office of
      adult probation, violate Appellant’s rights under the Vth
      Amendment of the United States Constitution and Article 1,
      Section 9 of the Pennsylvania Constitution?

      4. Did the restrictions placed on Appellant’s freedom of
      movement and the subsequent administration of a portable
      breath test constitute an illegal seizure of his person in violation
      of the IVth and      XIVth Amendments to the United States
      Constitution and Article 1, Section 8 of the Pennsylvania
      Constitution?

Appellant’s Brief at 4 (full capitalization omitted).

      In his first three issues, Appellant argues that the role of the Public

Defender has been abrogated by the Wyoming County policy that allows the

Adult Probation Department to determine eligibility for appointed counsel.

Appellant cites Dauphin County Public Defender’s Office v. Court of

Common Pleas of Dauphin County, 849 A.2d 1145 (Pa. 2004), as support

for his position. We conclude that the instant case is distinguishable from

Dauphin County Public Defender’s Office because Appellant lacks

standing to challenge the Wyoming County policy. “To establish standing to

challenge a governmental action, appellant must establish he is aggrieved by

the action, i.e., he has a substantial, direct, immediate, and not remote


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interest in the subject-matter of the litigation.”           Commonwealth v.

Wholaver, 989 A.2d 883, 905 (Pa. 2010).                 We reach this conclusion

because Appellant was not aggrieved by the policy delegating authority from

the Public Defender to the Office of Adult Probation.            As noted above,

Appellant was informed that he was approved for a public defender.3

Accordingly, we need not address Appellant’s first three issues, and we shall

proceed to Appellant’s fourth issue.4

       As observed above, Appellant alleges that he was subject to an illegal

seizure and that the trial court erred in denying his motion to suppress

evidence.    Appellant’s Brief at 23-25.       After careful review, we agree with

Appellant.

       The standard of review we apply when considering an order denying a

suppression motion is well established.          An appellate court 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.     Commonwealth v. Russo, 934 A.2d 1199, 1203 (Pa. 2007)

(citing Commonwealth v. Boczkowski, 846 A.2d 75 (Pa. 2004)). Where

the record supports the trial court’s factual findings, the appellate court is

bound by those facts and may reverse only if the legal conclusions drawn
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3
    Trial Court Opinion, 12/22/14, at 3 (unnumbered), ¶12.
4
  Nothing in this Memorandum should be understood as this Court’s
agreement with the Wyoming County policy.



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therefrom are in error. Id. However, an appellate court is not bound by the

suppression court’s conclusions of law.          Id. (citing Commonwealth v.

Duncan, 817 A.2d 455 (Pa. 2003)).

       With respect to factual findings, we are mindful that it is the sole
       province of the suppression court to weigh the credibility of the
       witnesses. Further, the suppression court judge is entitled to
       believe all, part or none of the evidence presented. However,
       where the factual determinations made by the suppression court
       are not supported by the evidence, we may reject those findings.
       Only factual findings which are supported by the record are
       binding upon this [C]ourt.

Commonwealth v. Caple, 121 A.3d 511, 517 (Pa. Super. 2015). In

addition, questions regarding the admission and exclusion of evidence are

within the sound discretion of the trial court and will not be reversed on

appeal absent an abuse of discretion. Commonwealth v. Freidl, 834 A.2d

638, 641 (Pa. Super. 2003). In appeals from suppression orders, our scope

of review is limited to the evidence presented at the suppression hearing.

In the Interest of L.J., 79 A.3d 1073, 1088-1089 (Pa. 2013).5

       Our jurisprudence recognizes three levels of police-citizen interactions.

The first is a mere encounter, which requires no level of suspicion.

Commonwealth v. Daniels, 999 A.2d 590, 596 (Pa. Super. 2010).                 The

second level is an investigative detention, which must be supported by
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5
   Our Supreme Court in L.J. clarified that the scope of review of orders
granting or denying motions to suppress is limited to the evidence presented
at the suppression hearing. The suppression hearing in this case post-dates
L.J., and therefore, L.J. is applicable here. Commonwealth v. Davis, 102
A.3d 996, 999 n.5 (Pa. Super. 2014).



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reasonable suspicion.       Id. at 596–597.        The third level is an arrest or

custodial detention, which must be supported by probable cause.             Id. at

597.    “In evaluating the level of interaction, courts conduct an objective

examination      of   the    totality   of   the     surrounding   circumstances.”

Commonwealth v. Lyles, 97 A.3d 298, 302 (Pa. 2014) (citation omitted).

        When we examine the totality of the circumstances, the focus is

centered on whether the accused’s movements have in some way been

restrained by physical force or show of authority. However, when courts are

making this determination, no single factor dictates whether a seizure has

occurred.    Commonwealth v. Strickler, 757 A.2d 884 (Pa. 2000).              The

United States Supreme Court and the Pennsylvania Supreme Court have

employed an objective test to determine whether a reasonable person would

feel free to leave or otherwise terminate the encounter. What constitutes a

restraint on liberty prompting a person to conclude that he is not free to

leave will vary, not only with the particular police conduct at issue, but also

with the setting in which the conduct occurs.          Lyles, 97 A.3d at 302-303

(quoting Michigan v. Chestnut, 486 U.S. 567, 573-574 (1988)).

        Here, the record reveals that Appellant appeared in Magisterial District

Judge David Plummer’s courtroom on a separate charge of DUI on March 11,

2014.    N.T., Suppression Hearing, 11/21/14, at 6.         Despite this being the

time for his preliminary hearing and arraignment, Appellant arrived without

counsel. Id. at 6-8. Judge Plummer informed Appellant that he wanted to


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complete Appellant’s case that day. Id. at 8. The judge then testified that

he communicated to Appellant that he could leave the courtroom, apply for a

public defender, and return before 1:00 p.m. in order to complete the

preliminary hearing and arraignment. Id. at 8.

      When Appellant arrived at the Adult Probation Department to apply for

counsel, Probation Officer Jerome Tonti believed he smelled alcohol

emanating from Appellant’s breath. N.T., Suppression Hearing, 11/21/14, at

14. Appellant was seated in Probation Officer Tonti’s office which is the first

office on the left down the hallway from the main waiting room. Id. at 36-

37.   Probation Officer Tonti testified that individuals arriving at Adult

Probation have to be “buzzed” in; i.e., the door has to be unlocked in order

to gain entry. Id. at 36. Probation Officer Tonti stated that Appellant and

he sat in the office with the door partially closed.    Id. at 37.   Probation

Officer Tonti was wearing probation department attire consisting of a

“probation shirt” with the Commonwealth of Pennsylvania’s seal.            Id.

Probation Officer Tonti was unsure if he was wearing his firearm, but he

testified that he assumed he was in fact carrying a sidearm. Id. Probation

Officer Tonti incorrectly assumed that Appellant was on supervised bail and

began questioning Appellant regarding his consumption of alcohol and

driving.   Id. at 15, 17, 60.     The officer then administered a portable

breathalyzer test which revealed a positive result for the presence of alcohol.

Id. at 18.    However, Probation Officer Tonti testified that he had no


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authority to arrest Appellant, and administration of the breathalyzer was not

a duty he was to perform as a probation officer; rather, he administered the

breath test “in the interest of the Commonwealth.” Id. at 18, 27.

     Probation Officer Tonti contacted the Tunkhannock Police Department

about Appellant driving and consuming alcohol. N.T., Suppression Hearing,

11/21/14, at 18. While Probation Officer Tonti testified that he never told

Appellant that he could not leave, he did tell Appellant that it would “be in

his best interest to remain so that he could be questioned further.” Id. at

19-20. Patrolman Dustin Cokely arrived between five and ten minutes later

and, based on Officer Tonti’s allegations, began questioning Appellant. Id.

at 19.   Patrolman Cokely conducted field-sobriety tests, concluded that

Appellant drove while under the influence of alcohol, and the patrolman

placed Appellant in custody. Id. at 43.

     Appellant testified that when Probation Officer Tonti sought to

administer the breath test, he had no choice but to oblige.                N.T.,

Suppression Hearing, 11/21/14, at 65.        Appellant further testified that he

was inside Probation Officer Tonti’s office with the door closed, and he did

not believe he was free to leave.   Id. at 65-68.      During Probation Officer

Tonti’s investigation, Appellant was never informed that he could refuse to

answer questions or have a lawyer present in conformity with Miranda v.

Arizona, 384 U.S. 436 (1966). Id. at 68-69.




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       After reviewing the record, we are constrained to conclude that

Appellant was subjected to an illegal search and seizure.       Due to the fact

that Appellant was not under Wyoming County supervision, Probation Officer

Tonti lacked the authority to conduct a warrantless search or seizure.        61

Pa.C.S. § 6152; 61 Pa.C.S. § 6153; Commonwealth v. Scott, 916 A.2d

695, 697 (Pa. Super. 2007). In Scott, this Court addressed the legality of a

probation officer searching a private citizen as follows:

       The defendant was a private citizen not subject to any
       supervisory authority of the probation officers. They had no right
       to interact with him in any official capacity. Despite the officers’
       lack of legal authority, appellee, who had just turned 22 at the
       time of incident, testified credibly that he believed he was
       required to stop when the probation officers told him to do so,
       and that he had no other choice but to hand over his bag to
       them for inspection when they asked.

Scott, 916 A.2d at 697-698.

       We conclude the same is true here. Appellant was not under county

supervision, and Probation Officer Tonti had no authority to search or seize

Appellant.    Upon smelling alcohol, Probation Officer Tonti administered a

breathalyzer test, which is a search,6 and informed Appellant that he should

remain in his office while police were summoned.         Probation Officer Tonti
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6
   Administering a breath test is a search under both the United States
Constitution and the Pennsylvania Constitution.     Commonwealth v.
Blasioli, 685 A.2d 151, 155-156 (Pa. Super. 1996) (citing Schmerber v.
California, 384 U.S. 757, 767 (1966) (blood); Skinner v. Railway Labor
Exec. Assn., 489 U.S. 602, 616-617 (1989) (breath and urine); and
Commonwealth Dept. of Transp. v. McFarren, 525 A.2d 1185, 1188 (Pa.
1987) (blood, breath, and urine)).



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was in uniform, carrying a gun, and from Appellant’s point of view, Appellant

was not free to leave.       Thus, he was seized at this juncture.       See

Commonwealth v. Ayala, 791 A.2d 1202, 1208 (Pa. Super. 2002) (holding

that if a reasonable person does not feel free to terminate and leave the

scene of an encounter with law enforcement, a seizure of that person has

occurred).

      Both the Commonwealth and the trial court concluded that Appellant

consented to the breath test and remained at the Adult Probation office

voluntarily. Commonwealth’s Brief at 25; Trial Court Opinion Denying Post-

sentence Motions, 9/14/15, at 3 (unnumbered). We disagree. As we stated

above, a reasonable person would not have believed that he was free to end

the encounter and leave; accordingly, there was no consent.      See Scott,

916 A.2d at 698 (citing Commonwealth v. Jackson, 630 A.2d 1231, 1235

(Pa. Super. 1993) (holding a consent to search following an illegal detention

is tainted and any evidence gathered from that search must be suppressed);

Commonwealth v. Roland, 701 A.2d 1360, 1363 (Pa. Super. 1997)

(stating that consent must be given freely, specifically, unequivocally, and

voluntarily; it cannot be the product of duress or coercion)).

      For the reasons set forth above, we conclude that the trial court’s

findings in support of denying Appellant’s motion to suppress are not

supported by the record. Appellant was subjected to an illegal search and

seizure.   Thus, the trial court erred when it denied Appellant’s motion to


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suppress the evidence gathered as it was fruit of the poisonous tree. See

Commonwealth v. Loughnane, 128 A.3d 806, 815 (Pa. Super. 2015)

(“The United States Supreme Court has stated that any material, tangible,

or verbal evidence ‘obtained either during or as a direct result of an unlawful

invasion’ is inadmissible at trial.” (quoting Wong Sun v. United States,

371 U.S. 471 (1963)).      Accordingly, we vacate Appellant’s judgment of

sentence, reverse the order denying Appellant’s motion to suppress, and

remand for further proceedings consistent with this Memorandum.

      Judgment of sentence vacated.       Order denying suppression motion

reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/2/2016




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