J-S24022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEVIN O'BRIAN HALL,                        :
                                               :
                       Appellant               :   No. 1184 MDA 2017


            Appeal from the Judgment of Sentence, June 28, 2017,
                in the Court of Common Pleas of York County,
             Criminal Division at No(s): CP-67-CR-0008123-2016.


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

MEMORANDUM BY KUNSELMAN, J.:                              FILED JUNE 13, 2018

        Kevin O’Brian Hall appeals from the judgment of sentence, after a trial

judge convicted him of various offenses related to driving under the influence

(DUI) of alcohol.1 Because he has not appealed the court of common pleas’

ruling that his initial interaction with law enforcement officers was a “mere

encounter,” we affirm.

        This appeal’s disposition turns on procedural grounds, so the factual

background of Hall’s arrest and conviction is mostly irrelevant. Briefly, several

police officers were wrapping-up an unrelated robbery investigation, when

they observed Hall’s driving and thought it was odd. He drove directly towards

the curb and sidewalk where the police were standing and suddenly veered

back into the middle of three lanes of traffic.
____________________________________________


1   See 75 Pa.C.S.A. § 3802.
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      Hall then came to a halt at a nearby red light. Two officers took that

opportunity to walk towards Hall’s car. As they approached, the traffic light

turned green, but Hall, without any direction from the officers, ignored the

traffic light’s directive to proceed. Because he stayed put, the police reached

his vehicle and smelled alcohol once the windows were down. Eventually, Hall

confessed to DUI and was under arrest.

      Pre-trial, Hall moved to suppress the Commonwealth’s evidence. The

judge, finding that the red light – and not the police – had stopped Hall’s car,

denied his motion. According to the court, the event was a “mere encounter,”

to which no constitutional protections applied. But, the learned suppression

judge also concluded that the officers possessed reasonable suspicion, in case

an appellate court disagreed with his “mere encounter” conclusion.

      The trial court convicted and sentenced Hall to 24 to 60 months in

prison.

      Hall appeals. He raises only one issue:

          Whether the trial court erred in denying [suppression],
          despite . . . the police . . . not possess[ing] the requisite
          reasonable suspicion . . . to stop and seize [Hall] and his
          vehicle based on a suspected violation of the Pennsylvania
          Vehicle Code, in violation of [Hall’s] right to be free from
          unreasonable police searches and seizures [under] the
          Fourth and Fourteenth Amendments to the United States




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          Constitution and Article [I], Section 8 of the Pennsylvania
          Constitution.2

Hall’s Brief at 3.

       The Commonwealth argues that neither constitution applies, because no

seizure of Hall’s person or vehicle took place until the policemen arrested him.

In the Commonwealth’s view, the officers engaged in “a mere encounter.”

Commonwealth’s Brief at 11.

       The suppression court agreed with the Commonwealth. Ruling from the

bench, the judge held, “based upon the testimony that I found credible” (i.e.,

the arresting officer) “I’m convinced . . . that the officer did not initiate a stop

of the vehicle based upon . . . reasonable suspicion but rather approached a

vehicle that was already stopped . . . .” N.T. at 33. Indeed, when the judge

asked the defense attorney if he “had any case law that differs,” the attorney

replied, “No, Your Honor.” Id. at 35-36. Thus, Hall offered the suppression
____________________________________________


2 The Fourth Amendment to the Constitution of the United States dictates that
“the right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated”
and “no Warrant shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the places to be searched, and the
persons or things to be seized.” U.S. Const. Amend. IV.

     Similarly, Article I, § 8 of the Constitution of the Commonwealth of
Pennsylvania provides:

          The people shall be secure in their persons, houses, papers
          and possessions from unreasonable searches and seizures,
          and no warrant to search any place or to seize any person
          or things shall issue without describing them as nearly as
          may be, nor without probable cause, supported by oath or
          affirmation subscribed to by the affiant.


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court no authority rebutting the Commonwealth’s “mere encounter” theory.

He also advanced no argument against such a theory before this Court.

        Hall only takes issue with the suppression court’s finding of fact that his

“vehicle would have veered off of the street onto the sidewalk and through an

adjacent    business,     thereby    justifying”   the   police   detaining   him   and

subsequently uncovering the evidence of DUI against him. Hall’s Brief at 6.

Thus, Hall presumes that the police engaged in an investigatory detention and

proceeds to challenge the secondary question of the officers had reasonable

suspicion to justify such a detention. However, the procedural posture of this

case dictates otherwise. The court of common pleas held that no investigatory

detention occurred.

        Thus, Hall’s argument that the officers lacked reasonable suspicion to

support such a detention is inconsequential.             For, as the Commonwealth

correctly states:

           Pennsylvania jurisprudence delineates three basic levels of
           interaction between citizens and police officers, and the
           accompanying standard of proof needed for each level is
           firmly established:

              The first category, a mere encounter, . . . does not
              need to be supported by any level of suspicion, and
              does not carry any official compulsion to stop or
              respond.    The second category, an investigative
              detention, derives from Terry[3] and its progeny:
              such a detention is lawful if supported by reasonable
              suspicion because, although it subjects a suspect to a
              stop and a period of detention, it does not involve such
              coercive conditions as to constitute the functional
____________________________________________


3   See Terry v. Ohio, 329 U.S. 1 (1968).

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            equivalent of an arrest. The final category, the arrest
            or custodial detention, must be supported by probable
            cause.

Commonwealth’s Brief at 11 (quoting Commonwealth v. Sands, 887 A.2d

261, 268-69 (Pa. Super. 2005). “The term ‘mere encounter’ refers to certain

non-coercive interactions with the police that do not rise to the level of a

seizure of the person under the fourth amendment.”          Commonwealth v.

Peters, 642 A.2d 1126, 1129 (Pa. Super. 1994) (quoting Commonwealth

v. Bennett, 604 A.2d 276, 280 (Pa. Super. 1992)). Hence, under a “mere

encounter” scenario, the Commonwealth need not prove any constitutional

level of suspicion justifying the exercise of its police powers.

      Were we to agree with Hall that reasonable suspicion was lacking, such

a determination would be superfluous due to the unchallenged conclusion that

Hall’s interaction with the police was a mere encounter. By reaching the issue

of whether reasonable suspicion existed, the judge employed “belt and

suspenders” to gird his decision not to suppress. Thus, even if Hall convinced

us to cut the suspenders, the belt would remain intact. And, because Hall has

not appealed the belt, we lack jurisdiction to cut it. See Pennsylvania Rule of

Appellate Procedure 1925(b)(4)(vii) (providing for the waiver of any issue not

raised to the trial court in an 1925(b) Statement). As such, we dismiss his

claim of error as moot, because no relief can flow from a reversal of that issue

alone.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/13/2018




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