J-A28027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

CHARLES T. MABINE

                            Appellee                No. 1643 EDA 2014


                   Appeal from the Order Entered May 5, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): MC-51-CR-0004285-2013


BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.

MEMORANDUM BY PANELLA, J.                       FILED DECEMBER 29, 2015

       The Commonwealth appeals from the pretrial order entered on May 5,

2014, by the Honorable Joan A. Brown, Court of Common Pleas of

Philadelphia County, which denied the Commonwealth’s petition for a writ of

certiorari from the order entered in municipal court granting Appellee,

Charles T. Mabine’s motion to suppress physical evidence.1 After review, we

reverse the order denying the Commonwealth’s petition for writ of certiorari

and remand for further proceedings.



____________________________________________


1
   This appeal properly invokes the jurisdiction of this Court as an
interlocutory appeal from an order that terminates or substantially handicaps
the prosecution. The Commonwealth has certified in good faith that the
Order substantially handicaps the instant prosecution.        See Pa.R.A.P.
311(d).
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        The relevant facts and procedural history can be summarized as

follows. On January 30, 2013, at approximately 3:50 a.m., a police officer

on routine patrol observed Mabine asleep behind the wheel of a running car

parked on the side of a street in a business district.             When the officer

approached the car, he discovered that Mabine was sound asleep and had

vomit or food on his shirt. After attempting to wake Mabine up for several

minutes to no avail, the officer called a wagon to come for DUI

transportation. Once Mabine woke up, the officer asked him to step out of

the car and began questioning him.             Through their interaction, the officer

noticed that Mabine’s eyes were bloodshot, his speech was slurred, and the

smell of alcohol was on his breath. Mabine was subsequently arrested and

charged with DUI.2

        At the municipal court hearing, Mabine moved to suppress physical

evidence3 on the grounds that the officer had “no reasonable suspicion to

question [him] about driving under the influence or probable cause to arrest

him.” N.T., Municipal Court Hearing, 12/20/13, at 3. Following the hearing,

the municipal court granted Mabine’s suppression motion, apparently on the

basis that the Commonwealth failed to establish reasonable suspicion for the

investigative detention. See id., at 13-14.
____________________________________________


2
    75 Pa.C.S.A. § 3802.
3
  It is not clear from the record what physical evidence Mabine sought to
have suppressed.



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        Thereafter, the Commonwealth filed a petition for writ of certiorari to

the court of common pleas. Following a brief hearing, the trial court denied

the Commonwealth’s writ of certiorari and affirmed the suppression order.4

This timely interlocutory appeal followed.

        On appeal, the Commonwealth contends that the trial court erred in

affirming the municipal court’s suppression order and maintains that the

officer possessed reasonable suspicion to approach Mabine and investigate

for possibility of DUI.

        Our standard of review for this issue is as follows.

        The issue of what quantum of cause a police officer must
        possess in order to conduct a vehicle stop based upon a possible
        violation of the Motor Vehicle Code is a question of law, over
        which our scope of review is plenary and our standard of review
        is de novo. However, in determining whether the suppression
        court properly denied [or affirmed] a suppression motion, we
        consider whether the record supports the court’s factual findings.
        If so, we are bound by those facts and may reverse only if the
        legal conclusions drawn therefrom are in error.

Commonwealth v. Holmes, 14 A.3d 89, 94 (Pa. 2011) (citations

omitted).

        The trial court’s factual findings are supported by the record. The legal

conclusion drawn from those facts, however, is just plain wrong. The Fourth

Amendment of the United States Constitution and Article 1, Section 8 of our

state    Constitution    protects    citizens   from   unreasonable   searches   and
____________________________________________


4
  The trial court fails to explicitly state its reasoning for affirming the
suppression order. See Trial Court Opinion, at 3-4.



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seizures. See In the Interest of D.M., 781 A.2d 1161, 1163 (Pa. 2001).

“To secure the right of citizens to be free from...[unreasonable searches and

seizures], courts in Pennsylvania require law enforcement officers to

demonstrate ascending levels of suspicion to justify their interactions with

citizens as those interactions become more intrusive.” Commonwealth v.

Beasley, 761 A.2d 621, 624 (Pa. Super. 2000).        Our Supreme Court has

defined three levels of interaction between citizens and police officers: (1)

mere encounter, (2) investigative detention, and (3) custodial detention.

See Commonwealth v. Fuller, 940 A.2d 476, 478 (Pa. Super. 2007).

      A mere encounter between a police officer and a citizen does not need

to be supported by any level of suspicion and “carr[ies] no official

compulsion on the part of the citizen to stop or respond.”       Id., at 479

(citation omitted). There is no constitutional provision that prohibits police

officers from approaching a citizen in public to make inquiries of them. See

Beasley, 761 A.2d at 624. However, a mere encounter may escalate into

an investigatory detention or seizure if police action becomes too intrusive.

See id.

      To determine whether a mere encounter rises to the level of an

investigatory detention, we must determine whether, as a matter of law, the

police have conducted a seizure of the person involved. See id.     To decide

whether a seizure has occurred, we must “examine all the circumstances

and determine whether police action would have made a reasonable person




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believe he was not free to go and was subject to the officer’s orders.”

Fuller, 940 A.2d at 479.

      Here, although the interaction between the officer and Mabine may

have begun as a mere encounter, it escalated into an investigatory

detention, and hence a seizure, once the officer woke Mabine up, asked him

to step out his car, and started questioning him. See Commonwealth v.

Ayala, 791 A.2d 1202, 1208 (Pa. Super. 2002) (holding mere encounter

escalated into an investigatory detention when officer ordered defendant to

step out of his car). Looking at the totality of the circumstances, we find

that a reasonable person in Mabine’s position would not have believed that

he was free to leave. Accordingly, we conclude that the trial court correctly

determined that Mabine was subject to an investigative detention and was

seized within the meaning of the Fourth Amendment and Article 1, Section

8.

      “Our courts have mandated that law enforcement officers, prior to

subjecting a citizen to investigatory detention, must harbor at least a

reasonable suspicion that the person seized is then engaged in unlawful

activity.”   Beasley, 761 A.2d at 625 (citations omitted).        To establish

grounds for reasonable suspicion, the police officer must “articulate specific

facts which, in conjunction with reasonable inferences derived from those

facts, led him reasonably to conclude, in light of his experience, that criminal

activity was afoot.” Id., at 626 (citation omitted).




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      In the instant case, the trial court affirmed the suppression order of

the municipal court, which held that the investigatory detention was not

supported by a reasonable suspicion of criminal activity. We disagree. The

evidence established that in the early hours of the morning, an officer found

Mabine asleep in the driver’s side of a running car parked on the side of the

road with food or vomit on his shirt.       See N.T., Municipal Court Hearing,

12/20/13, at 4-6.    Certainly, this evidence furnished the officer with the

requisite reasonable suspicion to approach Mabine’s car and investigate for

the possibility of DUI.   Cf. Commonwealth v. Toland, 995 A.2d 1242,

1246-1247 (Pa. Super. 2010) (holding evidence sufficient to establish DUI

where defendant was found asleep in driver’s seat of a car parked on a

public street with the engine running and headlights illuminated); see also

Commonwealth v. Woodruff, 668 A.2d 1158, 1161-1162 (Pa. Super.

1995) (holding evidence sufficient to establish DUI where defendant found

sleeping while slumped over steering wheel of parked running car with

headlights illuminated). Accordingly, we conclude that the trial court erred

in denying the Commonwealth’s petition for writ of certiorari and affirming

the suppression order of the municipal court.

      Order reversed.     Case remanded for further proceedings consistent

with this decision. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/2015




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