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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 KELLIE HENNINGER                        :
                                         :
                   Appellant             :   No. 522 EDA 2018

         Appeal from the Judgment of Sentence January 31, 2018
    In the Court of Common Pleas of Lehigh County Criminal Division at
                     No(s): CP-39-CR-0005408-2016

BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.:                           FILED MARCH 05, 2019

      Kellie Henninger appeals from the judgment of sentence of six months

of intermediate punishment, plus fines and costs, imposed after she was

convicted of driving under the influence (“DUI”) under 75 Pa.C.S. § 3802(a)(2)

(blood alcohol content (“BAC”) between .08 and .10%). Specifically, Appellant

challenges the denial of her pretrial motion to suppress physical evidence. We

affirm.

      The trial court made the following findings of fact at the hearing on

Appellant’s suppression motion.   Shortly after midnight on September 24,

2016, Officer Dominic Romagnoli of the Slatington Borough Police Department

was on patrol and noted two vehicles in the parking lot of a public park that

is a trailhead for a county park. The lot was known for drug activity. Officer

Romagnoli observed one of the vehicles pull out of the lot. He turned into the

parking area to check on the other vehicle, in which Appellant sat without
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having the lights illuminated. Appellant then activated her headlights and put

her vehicle into reverse.       Officer Romagnoli activated his overhead lights,

parked behind Appellant’s vehicle, and asked Appellant what she was doing in

the lot after hours. Appellant refused to answer questions, protesting that the

officer had no basis to stop her. Officer Romagnoli inquired whether Appellant

had been drinking, and she admitted to having consumed alcohol earlier. After

further interaction, Appellant was taken into custody and a blood test 1

revealed a BAC of .08%.

       Appellant was charged with DUI–general impairment and DUI–BAC

between .08 and .10%.          Appellant filed a pretrial motion to suppress the

physical evidence, “including the results of the blood draw as well as the

observations of the arresting officers,” alleging that Officer Romagnoli lacked

reasonable suspicion to stop her vehicle. Motion to Suppress, 8/10/17, at

¶¶ 8-9. The trial court denied the motion after a hearing, concluding that the

officer “articulated legitimate reasons on the record for conducting a stop and

investigative detention of [Appellant].” Trial Court Opinion, 9/19/17, at 5-6.

Appellant proceeded to a non-jury trial at which the Commonwealth withdrew

the charge of DUI–general impairment, and the trial court found her guilty of


____________________________________________


1 The circumstances surrounding the blood testing are not apparent from the
record. We note that neither in the trial court nor on appeal does Appellant
challenge the admissibility of the blood test results under Birchfield v. North
Dakota, 136 S. Ct. 2160 (2016) (providing warrantless blood draw cannot be
justified as a search incident to arrest; police may not threaten enhanced
punishment for refusing a blood test as a means to obtain consent).

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DUI–BAC between .08 and .10%. Appellant was immediately sentenced as

indicated above.

       Appellant filed a timely notice of appeal, and both Appellant and the trial

court complied with Pa.R.A.P. 1925. Appellant presents one question for our

review: “whether the suppression court erred in finding that police had

sufficient reasonable suspicion to warrant the seizure of [Appellant]?”

Appellant’s brief at 4 (unnecessary capitalization omitted).

       We consider Appellant’s question mindful of the following.

             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 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. Smith, 164 A.3d 1255, 1257 (Pa.Super. 2017) (cleaned

up).

       In resolving Appellant’s claim, we first must define the nature of Officer

Romagnoli’s interaction with Appellant, as different levels of suspicion are

required to justify different types of encounters. As this Court has explained:


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      Traditionally, this Court has recognized three categories of
      encounters between citizens and the police. These categories
      include (1) a mere encounter, (2) an investigative detention, and
      (3) custodial detentions. The first of these, a “mere encounter”
      (or request for information), . . . need not be supported by any
      level of suspicion, but carries no official compulsion to stop or to
      respond. The second, an “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.
      Finally, an arrest or “custodial detention” must be supported by
      probable cause.

Commonwealth v. Baldwin, 147 A.3d 1200, 1202 (Pa.Super. 2016)

(quoting Commonwealth v. Collins, 950 A.2d 1041, 1046 (Pa.Super.

2008)).

      In the instant case, Officer Romagnoli testified that he pulled his car

behind Appellant’s vehicle and activated his overhead lights while she was

attempting to back out of her parking space. N.T. Pretrial Motions, 8/29/17,

at 15. He acknowledged that his intent in so doing was to effectuate a stop

of Appellant’s vehicle, and that if she had attempted to leave, he would have

followed her. Id. The Commonwealth conceded that the interaction was from

its inception an investigative detention, and the trial court decided the motion

on that basis. See id. at 30; Trial Court Opinion, 9/19/17, at 4. We agree

that Appellant was subjected to an investigative detention.           See, e.g.,

Commonwealth v. Mulholland, 794 A.2d 398, 402 (Pa.Super. 2002)

(holding that investigative detention commenced when officer “parked his

cruiser in such a fashion as to make it difficult if not impossible for the van to

leave the parking lot”). Accordingly, to be valid, the stop must have been

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supported by “reasonable suspicion, based on specific and articulable facts,

that criminal activity may be afoot.” Commonwealth v. Mackey, 177 A.3d

221, 229 (Pa.Super. 2017) (internal quotation marks omitted).                  “The

fundamental inquiry is an objective one, namely, whether the facts available

to the officer at the moment of the intrusion warrant a man of reasonable

caution in the belief that the action taken was appropriate.” Id. (cleaned up).

       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.

Commonwealth v. Raglin, 178 A.3d 868, 872 (Pa.Super. 2018) (internal

citations and quotation marks omitted).        “Whether a Fourth Amendment

violation has occurred turns on an objective assessment of the officer’s actions

in light of the facts and circumstances confronting him at the time, and not on

the officer’s actual state of mind at the time the challenged action was taken.”

Commonwealth v. Foglia, 979 A.2d 357, 361 (Pa.Super. 2009) (cleaned

up).

       The relevant circumstances surrounding the stop of Appellant are as

follows. At approximately 12:20 a.m., Appellant’s vehicle was parked in the

the Rails to Trails parking lot, near the public restrooms which are open from

8:00 a.m. to 8:00 p.m. N.T. Pretrial Motions, 8/29/17, at 7-8. In the vicinity


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were a storage building and a picnic area. Id. There were no businesses open

or other reason for parking in the trailhead parking lot after the park was

closed. Id. at 11. Police had encountered criminal activity in the lot after

hours, namely drug dealing, drug use, and minors parking to take the trail to

“the bed bug cave,” a safety hazard that is marked “no trespassing.” Id. at

10-11.   For that reason, when the park is closed, “any vehicle that’s ever

been down there[,] we always go in and see what they’re doing and see why

they’re down there.” Id. at 11.

      Officer Romagnoli advised Appellant that he stopped her for being in the

parking lot after hours. Id. at 18.   He acknowledged that, while there was a

township ordinance that prohibited parking in the lot after hours, he did not

cite Appellant for its violation because it only applied between 2:00 a.m. and

6:00 a.m. in Slatington Public Parks. Id. at 16-17. Officer Romagnoli did not

recall if any signs indicated that the park or lot was closed during certain

times, and Appellant offered evidence that there were no signs posted on the

property. Id. at 16, 23, 25. Appellant also offered uncontradicted evidence

that the Rails to Trails park in Slatington Township was owned by Lehigh

County and leased by the township. Id. at 20. Before Appellant’s trial began,

the trial court granted the Commonwealth’s request to reopen the record on

the suppression motion, taking judicial notice that the Lehigh County Park

Rules and Regulations provide that “[u]nless specific hours are posted, use of




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County properties between dusk and dawn is prohibited.”          N.T. Trial and

Sentencing, 1/31/18, at 4; Commonwealth Exhibit 1 at ¶ 11.

      Appellant argues that the fact that she was in a high-crime area was

insufficient to establish reasonable suspicion that criminal activity was afoot.

Appellant’s brief at 12. Were that the only circumstance in support of the

stop, we would agree.     See Commonwealth v. Key, 789 A.2d 282, 290

(Pa.Super. 2001) (collecting cases that establish the principle that the “act of

merely walking away from police officers in a ‘high crime area’ is manifestly

insufficient to justify an investigative detention of that individual”). However,

the facts also establish that Appellant was in the Rails to Trails parking lot

after midnight. Appellant contends that this cannot justify the stop because,

contrary to Officer Ramagnoli’s belief, the park and lot were owned by the

county, not the township.     Appellant’s brief at 11.   Appellant ignores the

evidence that the county rules and regulations also provide that the park was

closed between dusk and dawn and, therefore, the park was closed at the time

Appellant was there under either the township or county rules.

      The testimony and photographic evidence also established that, with no

business open at the time and the availability of parking elsewhere along Main

Street, there was no reason for Appellant to be in the Rails to Trails lot other

than to access the park. An objective view of these circumstances would lead

a person of reasonable caution to believe that Appellant may have been in the

park unlawfully. As such, Officer Romagnoli was constitutionally permitted to


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briefly detain Appellant to investigate further. See, e.g., Commonwealth v.

Shabazz, 18 A.3d 1217, 1222-23 (Pa.Super. 2011) (holding circumstances

warranted investigative detention where officer had articulated facts to

suggest defendant may have violated vehicle code).      Accordingly, the trial

court did not err in denying Appellant’s motion to suppress.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/5/19




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