J-A07029-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                :     IN THE SUPERIOR COURT OF
                                             :           PENNSYLVANIA
              Appellee                       :
                                             :
      v.                                     :
                                             :
EDWARD THOMAS ADAMS,                         :        No. 1445 WDA 2016
                                             :
              Appellant                      :

           Appeal from the Judgment of Sentence August 31, 2016
             In the Court of Common Pleas of Allegheny County
              Criminal Division at No: CP-02-CR-0002870-2016

BEFORE:     OLSON, STABILE, and STRASSBURGER,* JJ.

CONCURRING MEMORANDUM BY STRASSBURGER, J.: FILED: June 5, 2017

      I respectfully concur.     The trial court determined, and the Majority

agrees, that Officer Falconio’s interactions with Appellant remained a mere

encounter until Appellant opened the car door after backup arrived and

Officer Falconio suspected that Appellant was under the influence of alcohol,

stating that the officer’s “[r]equest[] that Appellant remain in his vehicle for

officer safety until backup arrived one minute later was not unreasonable

under these specific circumstances.” Trial Court Opinion, 12/5/2016, at 6.

However, the reasonableness of the officer’s request is not the sole focus of

our inquiry. In objectively evaluating the totality of the circumstances, we

must determine “whether a reasonable person would have felt free to leave

or   otherwise   terminate     the   encounter,”   including   all   circumstances

evidencing “restrain[t] by physical force or show of coercive authority” by

*Retired Senior Judge assigned to the Superior Court.
J.S14019-17


police. Commonwealth v. Lyles, 97 A.3d 298, 302–03 (Pa. 2014). When

a police officer pushes a person’s car door closed, instructs the person to

remain in the car, and remains outside the car waiting for backup, only an

unreasonable person would feel free to exit the car or drive away.

      However, Officer Falconio had reasonable suspicion that criminal

activity was afoot based upon the car’s lingering presence in a parking lot

behind closed businesses around 3 a.m. Although Appellant owned one of

the businesses, Officer Falconio did not know this when he was determining

why Appellant was parked behind the businesses at such an early hour.

Additionally, certainly Officer Falconio had reasonable suspicion once

Appellant claimed he could not open his car door because he did not have

his car keys, yet his car keys were in plain sight. Therefore, I would affirm,

albeit on a different basis than the Majority.

      Judge Stabile joins.




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