J-A30031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

KEITH AUBREY BROOKIN II

                        Appellant                    No. 588 MDA 2016


      Appeal from the Judgment of Sentence entered March 31, 2016
             In the Court of Common Pleas of Dauphin County
            Criminal Division at No: CP-22-CR-0005005-2015


BEFORE: BOWES, OLSON, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                           FILED APRIL 07, 2017

      Appellant, Keith Aubrey Brookin II, appeals from the judgment of

sentence the Court of Common Pleas of Dauphin County entered on March

31, 2016.   Appellant argues the trial court erred in finding the arresting

officer had reasonable suspicion to believe Appellant was involved in criminal

activity. We disagree. Accordingly, we affirm the judgment of sentence.

      The trial court summarized the relevant factual background as follows:

      On June 24, 2015, Officer Patrick Walsh of Swatara Township
      Police Department was on patrol with his car window down. It
      was sometime around 1 a.m. when he saw a beige Buick parked
      in front of 920 High Street. As he drove past, he saw a man
      talking to the driver and heard a woman yelling and screaming.
      The woman seemed agitated, she was seated in the front
      passenger seat and seemed to be yelling at someone inside the
      car.

      [Officer Walsh] circled the block and approached the car again to
      stop and make sure everything was ok. As he pulled up behind
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     the vehicle, without lights, three people fled: the male talking to
     the driver, the female passenger who had been yelling and a
     male who had been sitting in the back seat. Based on the
     yelling, Officer Walsh [] stopped to make sure there was no
     domestic [violence] situation happening.

     [Officer] Walsh did not even have time to exit his car before
     everyone started leaving. As soon as the three people left, the
     car also began pulling away and the car stopped about 100 feet
     from where it had been.

     [Officer] Walsh approached the driver to inquire about the
     female who had been yelling and upon contact with him, he
     noticed a strong odor of alcohol. He asked Appellant if he had
     been drinking and Appellant indicated he had two beers earlier
     that evening. Other officers arrived between five and [ten]
     minutes later and [Officer] Walsh explained to them what had
     happened.

     When those officers inquired, Appellant indicated he had been at
     Hungry Dog’s Bar and Grill earlier that evening where he had
     been drinking, but he hadn’t had anything to drink after that,
     which was about 10:00 p.m.

     [Officer] Walsh performed field sobriety tests which Appellant
     performed unsatisfactorily and so Appellant was placed under
     arrest for suspicion of driving under the influence.        The
     subsequent blood test indicated a BAC of .171 as well as traces
     of THC.

     Officer Walsh never spoke with the female in the car, but
     Appellant admitted that she had been yelling at him.

Trial Court Opinion, 5/11/16, at 1-2 (citations to record and footnote

omitted).

     We conduct our review according to the following authorities:

     Our 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

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      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, we are bound by these findings and
      may reverse only if the court’s legal conclusions are erroneous.
      Where, as here, 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 our plenary
      review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal citations

and quotation marks omitted).        We limit our review to the evidence

produced at the suppression hearing. In re L.J., 79 A.3d 1073 (Pa. 2013).

The Commonwealth bears the burden of producing evidence and establishing

that it did not violate the defendant’s rights in gathering evidence.

Pa.R.Crim.P. 581(H).

      As noted above, Appellant argues the officer did not have reasonable

suspicion to believe he was involved in criminal activity.       Accordingly,

Appellant argues the officer illegally stopped him.

      In Commonwealth v. Brown, 996 A.2d 473 (Pa. 2010), our

Supreme Court explained:

      While warrantless seizures such as a vehicle stop are generally
      prohibited, they are permissible if they fall within one of a few
      well-delineated exceptions. One such exception allows police
      officers to detain individuals for a brief investigation when they
      possess reasonable suspicion that criminal activity is afoot.
      Reasonable suspicion is a less stringent standard than probable
      cause necessary to effectuate a warrantless arrest, and depends
      on the information possessed by police and its degree of

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      reliability in the totality of the circumstances. In order to justify
      the seizure, a police officer must be able to point to specific and
      articulable facts leading him to suspect criminal activity is afoot.
      In assessing the totality of the circumstances, courts must also
      afford due weight to the specific, reasonable inferences drawn
      from the facts in light of the officer’s experience and
      acknowledge that innocent facts, when considered collectively,
      may permit the investigative detention.

Id. at 476-77 (quotation marks and internal quotations omitted).

      The trial court found that reasonable suspicion existed in this case,

reasoning as follows:

      Officer Walsh specifically testified that while on patrol he
      [became] concerned about a possible domestic [violence]
      situation because he heard a woman yelling from a car. Upon
      approaching the vehicle, the woman and two men fled while the
      vehicle pulled away. In that moment, he decided to stop the
      vehicle rather than pursue the three people on foot. Part of a
      patrol officer’s duty is to investigate suspicious activity. A loud
      argument, in the middle of the night, where everyone leaves
      when police approach is certainly a situation where a reasonable
      man would be suspicious of criminal activity. [Officer] Walsh
      even testified that he was concerned that the criminal activity
      was a domestic violence situation. While that was not ultimately
      what occurred, it was enough for him to stop the vehicle to
      investigate. He did question Appellant about the argument, but
      as he smelled the odor of alcohol and Appellant admitted to
      drinking earlier, the investigation quickly turned from a possible
      domestic violence situation into a DUI investigation.

Trial Court Opinion, 5/11/16, at 3-4. We agree with the trial court’s analysis

and conclusions that, under the totality of circumstances, Officer Walsh had

reasonable suspicion to stop Appellant.

      In his brief, Appellant also argues that the officer’s concerns about the

safety for the woman were unsupported by his actions following the

interaction with the group. Appellant seems to argue that the officer is not

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J-A30031-16


credible because had he been concerned with the woman’s safety, the officer

should have pursued the woman, not Appellant.               If he is so arguing,

Appellant is not entitled to relief.     As a reviewing court, we do not make

credibility   determinations       or   reweigh   witnesses’      testimony.       See

Commonwealth v. Angel, 946 A.2d 115, 117 (Pa. Super. 2008).

      Additionally, Appellant argues the officer essentially misunderstood or

misconstrued the facts leading to the stop. In Appellant’s view, there was

nothing suspicious or concerning about a woman yelling at somebody else,

while they were in a stopped vehicle on a public road at 1 a.m., who then

fled upon being approached by a marked police vehicle. In Appellant’s view,

these facts merely showed innocent activity by Appellant insufficient to

support a detention.

      Appellant   ignores   that    “[w]hen   considering   the    totality   of   the

circumstances, we need not limit our inquiry to only those facts that clearly

and unmistakably indicate criminal conduct. Instead, even a combination of

innocent facts, when taken together, may warrant further investigation by

the police officer.”   Commonwealth v. Caban, 60 A.3d 120, 129 (Pa.

Super. 2012) (internal quotation marks and citations omitted).            Thus, the

mere fact Appellant’s actions may have had an innocent explanation does

not undermine the officer’s reasonable determination that those facts

warranted further investigation. See, e.g., Commonwealth v. Riley, 715

A.2d 1131, 1135 (Pa. Super. 1998) (“Merely because a suspect’s activity


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may be consistent with innocent behavior does not alone make detention

and limited investigation illegal.”).          The question whether the detention is

supported by reasonable suspicion to detain for investigation must be

determined in light of the information the officer had at the time of the stop,

giving “due weight to the specific inferences the police officer is entitled to

draw from the facts in light of his experience.” Commonwealth v. Rogers,

849 A.2d 1185, 1189 (Pa. 2004) (quotation marks, brackets, and citation

omitted). We also note “that the police have a duty to respond seriously to

reported[1] domestic conflict situations, and in doing so, they must be

accorded some latitude in making on-the-spot judgments as to what actions

to take and what actions are reasonably necessary to protect themselves

and potential victims of abuse.” Commonwealth v. Davido, 106 A.3d 611,

623-24 (Pa. 2014).

       Here, considering the facts, as recounted above, in light of the

aforementioned authorities, we conclude the trial court did not err in denying

Appellant’s motion to suppress.

       Judgment of sentence affirmed.

       Judge Olson joins this memorandum.
____________________________________________


1
  We are aware there was no outstanding report of possible domestic
violence situation here. However, the underlying facts are even stronger.
Indeed, the officer personally heard the woman yelling, which, coupled with
the other circumstances noted above, led him to believe he had to
investigate the matter on a suspicion of domestic violence in progress.




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J-A30031-16


     Judge Bowes files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2017




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