J-S60029-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ROBERT LEE LOMAX

                            Appellant                No. 46 MDA 2014


        Appeal from the Judgment of Sentence entered August 20, 2013
             In the Court of Common Pleas of Cumberland County
               Criminal Division at No: CP-21-CR-0002145-2012


BEFORE: OTT, STABILE, and JENKINS, JJ.

MEMORANDUM BY STABILE, J.:                      FILED DECEMBER 22, 2014

        Appellant, Robert Lee Lomax, appeals from the judgment of sentence

of the Court of Common Pleas of Cumberland County entered August 20,

2013.     Appellant argues the trial court erred in denying his motion to

suppress evidence. Appellant also argues the verdict is against the weight of

the evidence. For the reasons stated below, we affirm.

        The trial court summarized the facts leading to Appellant’s arrest as

follows:1
____________________________________________


1
  These are the factual findings made by the suppression court. In its Rule
1925(a) opinion, the trial court, in summarizing the facts of the case, relied
on the evidence offered at trial. In its Rule 1925(a) opinion, the trial court
did not address the suppression claim but referred to the opinion issued in
connection with the denial of the suppression motion. It is worth mentioning
that, for cases in which the suppression hearing occurs after October 30,
2013, the scope of review of a suppression order encompasses only the
record adduced at the suppression hearing. In the Interest of L.J., 79
(Footnote Continued Next Page)
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      On June 9, 2012, at approximately 2:30 A.M., Officer Lane Pryor
      of the Camp Hill Police Department, who was on patrol, noticed a
      car occupied by two individuals off to the side of the road. The
      car was parked in a residential neighborhood. It did not have
      any headlights on and was not running. He testified that there
      was no other traffic or occupied cars on the road at that time.
      Officer Pryor pulled alongside the car to do a safety check of the
      individuals inside the car. Officer Pryor activated his overhead
      lights to reassure the vehicle’s occupants of his identity. As he
      did so, he noticed the two individuals inside the vehicle kiss each
      other. The passenger, [Appellant], then exited the car.

      Officer Pryor approached the parked car on foot to speak with
      the driver who was still in the car. As Officer Pryor approached,
      the driver put the car in drive. Officer Pryor was able to get her
      attention to indicate he was there and she placed the car back in
      park. At that time, [Appellant], who was already outside the
      vehicle, became nervous, told Officer Pryor that he was walking
      home to Logan Street in Camp Hill, that Logan Street was closed
      and that he had identification. Officer Pryor did not engage with
      [Appellant], but instead began speaking with the driver. Officer
      Pryor testified that while he did so, [Appellant] was yelling,
      flailing his arms around and kept trying to distract Officer Pryor’s
      attention by attempting to hand Officer Pryor his identification
      across the roof of the car from the passenger side. Officer Pryor
      testified that he stopped talking with the driver and told
      [Appellant] that, “I’ll be with [you] in just a minute.”

      Officer Pryor knew that Logan Street was not closed. He also
      noted that [Appellant] and driver were parked a few blocks from
      [Appellant]’s residence, not in front of it. The driver told Officer
      Pryor that [Appellant] was too drunk to drive and that she was
      giving him a ride home. The driver did not know the name of
      [Appellant]. Officer Pryor then spoke with [Appellant] in front of
      his police cruiser. [Appellant] voluntarily gave Officer Pryor his
      identification. Officer Pryor ran [Appellant]’s name and found he
      had an outstanding felony arrest warrant for drug delivery. The
      driver was later determined to also have a warrant for her

                       _______________________
(Footnote Continued)

A.3d 1073, 1088-89 (Pa. 2013). We may examine the entire record here,
because the suppression hearing occurred prior to October 30, 2013.



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      arrest. [At this point, the officer took both the driver and
      Appellant into custody.]

Trial Court Opinion, 3/4/13, at 1-2.

      After the trial court denied his motion to suppress evidence, a jury

convicted Appellant of five drug-related offenses. Appellant was sentenced

accordingly.   The trial court denied Appellant’s motion for modification of

sentence. This appeal followed.

      Appellant raises two issues for our review:

      I.     Whether the suppression court erred in denying the
             Appellant’s motion to suppress evidence when the officer’s
             interaction went beyond a mere encounter for a welfare
             check, to that of an investigatory stop without reasonable
             suspicion.
      II.    Whether the guilty verdict for possession with intent to
             deliver a schedule II controlled substance was so against
             the weight of the evidence as to shock the conscience of
             the court.

Appellant’s Brief at i.

      We review an order denying a motion to suppress as follows:

      In addressing a challenge to a trial court’s denial of a
      suppression motion, we are limited to determining whether the
      factual findings are supported by the record and whether the
      legal conclusions drawn from those facts are correct. Since the
      Commonwealth prevailed in 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 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.

Commonwealth v. Scarborough, 89 A.3d 679, 683 (Pa. Super. 2014)

(quotation omitted).


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      Additionally, regarding the specific issue before us, i.e., whether the

initial interaction between the officer and Appellant was a mere encounter or

an investigative detention, we apply the following standard:

      To determine whether a mere encounter rises to the level of an
      investigatory detention, we must discern whether, as a matter of
      law, the police conducted a seizure of the person involved. To
      decide whether a seizure has occurred, a court must consider all
      the circumstances surrounding the encounter to determine
      whether the demeanor and conduct of the police would have
      communicated to a reasonable person that he or she was not
      free to decline the officer’s request or otherwise terminate the
      encounter. Thus, the focal point of our inquiry must be whether,
      considering the circumstances surrounding the incident, a
      reasonable person innocent of any crime, would have thought he
      was being restrained had he been in the defendant’s shoes.

Commonwealth v. Collins, 950 A.2d 1041, 1046-47 (Pa. Super. 2008)

(citation omitted).

      In his brief, Appellant mentions several cases, but mostly relies on

Commonwealth          v     Hill,   874   A.2d    1214       (Pa.   Super.   2005),    and

Commonwealth v. Fuller, 940 A.2d 476 (Pa. Super. 2007), for the

proposition that an officer’s showing of authority (i.e., turning overhead

lights on), where there is no reason to believe assistance is needed by the

motorist,   transforms      the     interaction   from   a    mere    encounter   to    an

investigatory stop.       Specifically, Appellant argues that given the vehicle in

question had no visible signs of distress, the officer’s turning on the

overhead lights of his patrol vehicle constituted a seizure of the vehicle and

its occupants, which was required to be supported by reasonable suspicion



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to be lawful.   Because the officer lacked reasonable suspicion to seize the

vehicle and occupants, the evidence gathered following the seizure must be

suppressed. We disagree. Appellant ignores important facts that bear upon

a totality of circumstances analysis.   Appellant also misconstrues relevant

case law.

      Regarding the facts, Appellant does not mention the vehicle was

parked in a residential neighborhood in the early hours of the morning.

“Because this was atypical for the time and place, [the officer] approached

[the vehicle] to do a safety check of the individuals in the car to see if

everything was alright.” Trial Court Opinion, 3/4/13, at 3 (emphasis added).

Appellant does not mention that when the officer turned the overhead lights

on, the vehicle was already stopped. Id. at 1, 4. In other words, the officer

did not pull the vehicle over. Appellant does not mention the officer did not

stop the vehicle when the driver put the car in drive, but the driver stopped

the vehicle when the driver realized the officer was approaching. Id. at 1.

Appellant does not mention that, at the time the officer approached the

vehicle, Appellant was no longer in the car and that the officer did not ask or

order him not to leave; id. at 4, in fact, the officer ignored Appellant. Id. at

1. Appellant does not mention that Appellant, in an attempt to distract the

officer, who was interacting with driver, tried to engage the officer offering

to show his identification card. Id. at 1, 4. Appellant does not mention that

he stated he was leaving on foot to go home.         Id. at 1.   He, however,


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decided to stay to pursue his goal to distract the officer. Id. at 1, 4. Again,

the officer did not stop or otherwise prevent him from leaving the scene.

Id. at 4. More specifically, the suppression court found:

      In the case sub judice, the car Officer Pryor approached was
      already parked. [Appellant] was already outside the car. Officer
      Pryor approached the car to speak with the driver. Officer Pryor
      made no request of [Appellant]. [Appellant] sought to engage
      Officer Pryor by volunteering information and his identification.
      Officer Pryor did not retain nor request [Appellant]’s
      identification. [Appellant] could have walked away at any point
      but chose to stay in an effort to distract the officer. Later, after
      Officer Pryor had spoken with the driver, [Appellant] voluntarily
      gave Officer Pryor his identification. At no point did Officer Pryor
      tell [Appellant] that he was not free to leave or order him to stay
      where he was located. [Appellant]’s movements were in no way
      restricted.

Trial Court Opinion, 3/4/13, at 3-4.

      With this factual background in mind, we now address the legal issue

before us. Appellant suggests the use of overhead lights, when approaching

a motorist who is not in apparent distress, constitutes a seizure, which must

be supported by reasonable suspicion.        Appellant’s Brief at 16 (discussing

Hill, Fuller). While Appellant discusses additional cases (Commonwealth

v. Kendall, 976 A.2d 503 (Pa. Super. 2009), Collins, supra, and

Commonwealth v. Conte, 932 A.2d 690 (Pa. Super. 2007) (distinguishing

them from the instant matter)), he fails to mention Commonwealth v.

Johonoson, 844 A.2d 556 (Pa. Super. 2004).                Johonoson severely

undermines Appellant’s argument about the legal consequences deriving

from the use of overhead lights. On several occasions this Court has stated


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that “triggering emergency lights or initiating interaction with a driver does

not necessarily shift the interaction between an officer and a driver from a

mere encounter to an investigatory detention.” Kendall, 976 A.2d at 505

(citing Johonoson, Collins, and Conte).

     Whether    there   is   a   seizure   depends   on   the   totality   of   the

circumstances. In Johonoson, we noted:

     Critical to our determination is the fact that [a]ppellant pulled off
     the road voluntarily and came to a full stop on the side of the
     road without any prompting from Trooper Perloff. Trooper
     Perloff then parked behind [a]ppellant’s vehicle, activated his
     overhead lights, and approached [a]ppellant to see if he could be
     of assistance. Trooper Perloff did not stop [a]ppellant’s vehicle.

     Appellant relies almost exclusively on Trooper Perloff’s flashing
     lights as a signal that he was “not free to leave,” thus making
     the interaction an investigative detention. We recognize that
     flashing overhead lights, when used to pull a vehicle over,
     are a strong signal that a police officer is stopping a vehicle and
     that the driver is not free to terminate this encounter. The same
     is not necessarily true under the factual circumstances presented
     here. It is one traditional function of State Troopers, and indeed
     all police officers patrolling our highways, to help motorists who
     are stranded or who may otherwise need assistance. Such
     assistance is to be expected, and is generally considered
     welcome.

     Often, and particularly at night, there is simply no way to render
     this aid safely without first activating the police cruiser’s
     overhead lights. This act serves several functions, including
     avoiding a collision on the highway, and potentially calling
     additional aid to the scene.        Moreover, by activating the
     overhead lights, the officer signals to the motorist that it is
     actually a police officer (rather than a potentially dangerous
     stranger) who is approaching.

Johonoson, 844 A.2d at 562 (footnote omitted) (emphasis in original).




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      Here, the trial court found the time and location where the officer saw

the vehicle (i.e., 2:30 a.m. in a residential area) was “atypical.” In fact, the

officer decided “to do a safety check of the individuals inside the car,” Trial

Court Opinion, 3/4/13, at 1, because “[t]hat’s not something you see on

every patrol shift.” N.T. Suppression Hearing, 1/15,13, at 7. The trial court

found the officer also “activated his overhead lights to reassure the vehicle’s

occupants of his identity.”   Trial Court Opinion, 3/4/13, at 1.    Finally, the

trial court found the vehicle was already stopped when the overhead lights

were activated.   In other words, the officer did not pull the vehicle over.

Thus, in light of the foregoing, and like Johonoson, the evidence introduced

at the suppression hearing shows that a reasonable person in Appellant’s

position would have understood the officer’s arrival as an act of assistance,

not the start of an investigative detention.

      Absence of outward signs of the vehicle being in distress does not bar

an officer from conducting a safety check. In Collins, we noted:

      The record indicates for example, that Trooper Walton parked
      twenty feet away from the rear of the vehicle. . . . The vehicle
      in question was not obstructing traffic or in violation of any
      traffic regulations.   Although people parked at this location
      regularly, they did not do so as frequently after dark. Thus,
      Trooper Walton was concerned enough to check on the condition
      of the vehicle and safety of its occupants. Moreover, Trooper
      Walton testified that no outward sign of distress emanated from
      the vehicle, and he did not observe anything that would lead him
      to believe that illegal activity was occurring. Further, Trooper
      Walton explained on cross-examination that the occupants were
      not scrambling around as if they were trying to get away
      because a state trooper was approaching them.            Instead,
      Trooper Walton approached the vehicle requesting information,

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      asked if “everyone was ok” and then [a]ppellee blurted out that
      they were smoking marijuana. Trooper Walton at that point
      smelled burnt marijuana and observed the bong in the vehicle.

Collins, 950 A.2d at 1047 (footnote and citations to record omitted).

      Appellant argues the instant case is distinguishable from Collins.

Specifically, Appellant notes that in Collins, but not here, “the car’s unusual

location at an unusual hour was a strong factor in determining if there was

reason to believe the car may need assistance.”       Appellant’s Brief at 18.

Appellant then concluded that the instant matter differs from Collins

because here “the car was parked on the side of a residential road, which is

not uncommon, and the officer witnessed what he testified he thought was a

goodbye between the two passengers.” Id. at 18-19.

      It is worth noting the trial court here, as in Collins, found that the

location and the hour for a car being parked in that area was “atypical” even

though there were no outward signs of distress emanating from the vehicle.

The record here, therefore, does not support Appellant’s contention.

Additionally, the mere fact a vehicle is parked in a residential area does not

mean that the vehicle may not be in need of assistance. Appellant provides

no authority to the contrary, nor can we find any.

      Regarding Conte, Appellant argues the case is distinguishable because

the car was parked in a residential area and the vehicle did not create safety

concerns as in Conte (vehicle was parked on ramp). Again, the mere fact a

vehicle is parked in a residential area does not rule out the vehicle may not


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be in need of assistance. Similarly, the fact vehicle did not create any safety

risks is not dispositive of whether a police officer may conduct a safety

check. See Collins, supra.

      Appellant also distinguishes this matter from Kendall because in

Kendall, but not here, the vehicle was damaged, which would have signaled

need for assistance. The condition of the car is certainly a circumstance to

be considered, but the fact the vehicle has no visible signs of being in

distress does not preclude a police officer from conducting a safety check if

something is nonetheless amiss. See Collins, supra.

      More importantly, Appellant fails to reconcile Hill and Fuller with

other cases where this Court did not find the interaction to be an

investigatory stop. We did so in Kendall. Therein we noted:

      It is true that there are cases where the trial court found that
      the stop was not just a mere encounter to render assistance,
      and the officer needed reasonable suspicion of criminal activity
      to detain a vehicle. In those cases, it was found that the driver
      would not reasonably believe he or she was free to leave or
      terminate the encounter with the officer. The activation of the
      officer’s emergency lights when the officer is approaching the
      driver’s vehicle may be a factor in what a reasonable driver
      would believe. Therefore, there would be record support for a
      trial court finding that the interaction between the officer and the
      driver amounts to an investigatory detention which requires
      reasonable suspicion.

      These are fact-sensitive situations and in general we must defer
      to the trial court determination. The cases that hold there was
      an investigative detention are distinguishable from this case,
      particularly because the trial court did not agree that the stop
      was to render assistance. [This Court then discussed Hill and
      Fuller]. . . .


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     ....

     While we have held that the applicable standard in determining
     whether an interaction rises to the level of an investigative
     detention hinges on whether “a reasonable person believe[s] he
     was not free to go and was subject to the officer’s orders,” this
     should not be the only standard in situations like the one at
     hand. Cf. Fuller, 940 A.2d at 479. It has been suggested in
     the case law that this determination might turn on whether the
     driver had reason to believe that the officer is simply carrying
     out his duty to render aid. The ultimate decision is one the
     suppression judge must make after hearing all of the testimony
     and determining the credibility of the witnesses. Whether the
     officer believes the driver is free to leave is not the determining
     factor, and neither is the use of hazard lights before pulling over.

     ....

     In cases where a driver pulls over for an unknown reason, the
     officer must not be restrained from investigating the situation to
     assess whether help is needed. If the investigation occurs at
     night, it is reasonable for an officer to activate overhead lights to
     ensure his or her own safety as well as the safety of the driver,
     and to notify passing vehicles of their presence. A driver’s
     unusual behavior is enough of a reason for an officer to stop,
     assess the situation, and determine whether the driver is in need
     of assistance.

     Certainly an officer would realize that there might be a variety of
     reasons for unusual behavior by a driver which could include
     driving under the influence of drugs or alcohol. However, merely
     because the officer considers drunk driving as one alternative
     does not mean he is precluded from trying to aid a citizen if he
     also thinks the driver might be in distress. This decision must in
     the first instance be made by the trial judge and should not be
     upset unless the record does not support the trial judge’s
     findings.

Kendall, 976 A.2d at 507-09 (emphasis in original).

     Here, as in Kendall, the suppression court, considering the totality of

circumstances, concluded the officer approached the vehicle to conduct a


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safety check.       Here, as in Kendall, nothing in the record suggests

otherwise.     Accordingly, the trial court did not err in denying Appellant’s

motion to suppress evidence.

        Appellant next argues the verdict is against the weight of the

evidence. The claim, however, is waived. A claim that a verdict is against

the weight of the evidence must be raised in a motion for a new trial either

(1) orally on the record, before sentencing; (2) in a written-presentence

motion; or (3) in a post-sentence motion. Pa.R.Crim.P. 607(A). Failure to

properly preserve the claim results in waiver, even if the trial court

addresses the weight of the evidence in its opinion.         Commonwealth v.

Thompson, 93 A.3d 478, 490 (Pa. Super. 2014) (quoting Commonwealth

v. Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012)). It is axiomatic that a

party cannot raise an issue for the first time on appeal.          See Pa.R.A.P.

302(a).

        Appellant failed to provide any indication on how and when he raised

and preserved the issue for our review.            Accordingly, the weight of the

evidence claim is waived.           See Pa.R.A.P. 2117(c), 2119(e); see also

Commonwealth v. Williams, 980 A.2d 667, 671 (Pa. Super. 2009).2

____________________________________________


2
    In Williams, we noted:

        Pursuant to the Rules of Appellate Procedure, Appellant must
        specify where in the record this issue was preserved. See
        Pa.R.A.P. 2117(c) and 2119(e). In his brief, [a]ppellant does
(Footnote Continued Next Page)


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Additionally, “it is not the responsibility of this Court to scour the record to

prove that an appellant has raised an issue before the trial court, thereby

preserving it for appellate review.”             Commonwealth v. Baker, 963 A.2d

495, 502 n.6 (Pa. Super. 2008). At any rate, upon review of the record it

appears that Appellant did not raise the claim in a motion with the trial court

as required under Pa.R.Crim.P. 607(A).               It appears Appellant raised the

claim for the first time in his Rule 1925(b) statement, which is insufficient

for preserving it for appellate review. See Commonwealth v. Sherwood,

982 A.2d 483 (Pa. 2009).3

       Judgment of sentence affirmed.

                       _______________________
(Footnote Continued)

       not indicate where the issue was preserved in the trial court, nor
       does he even allege that he raised the issue[.] Consequently,
       we are constrained to deem this issue waived. See Pa.R.A.P.
       302(a) (“[i]ssues not raised in the lower court are waived and
       cannot be raised for the first time on appeal”).

Williams, 980 A.2d at 671.
3
    In Sherwood, the Supreme Court noted:

       Regarding [a]ppellant’s weight of the evidence claim[,] we note
       that [a]ppellant did not make a motion raising a weight of the
       evidence claim before the trial court as the Pennsylvania Rules of
       Criminal Procedure require. See Pa.R.Crim.P. 607(A). The fact
       that Appellant included an issue challenging the verdict on
       weight of the evidence grounds in his 1925(b) statement and the
       trial court addressed [a]ppellant’s weight claim in its Pa.R.A.P
       1925(a) opinion did not preserve his weight of the evidence
       claim for appellate review in the absence of an earlier motion.

Sherwood, 982 A.2d at 484 (footnote omitted).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2014




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