J-S52023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

DAVID LEE CHRISTY

                        Appellant                    No. 92 WDA 2015


             Appeal from the Order Dated December 11, 2014
               In the Court of Common Pleas of Butler County
            Criminal Division at No(s): CP-10-CR-0000309-2014


BEFORE: SHOGAN, OLSON and WECHT, JJ.

MEMORANDUM BY OLSON, J.                          FILED OCTOBER 15, 2015

     Appellant, David Lee Christy, appeals from the order dated December

11, 2014, denying his omnibus pretrial motion to suppress evidence. Upon

review, we are constrained to reverse and vacate his convictions.

     The trial court summarized the facts of this case, as presented at a

suppression hearing held on July 11, 2014, as follows:

        While on patrol with Officer Robert Martz during the early
        morning of January 21, 2014, Officer [Frank] Davis [of the
        Slippery Rock Police Department] was in a stationary
        position in his police vehicle off of Harmony Road across
        from Slippery Rock University. From that position Officer
        Davis was able to see the intersection of Stadium Drive and
        North Road. At one point, at approximately 1:30 [a.m.],
        Officer Davi[s] saw a pickup truck sitting at the intersection
        with its headlights on for between five and ten minutes.
        The officers then approached the truck and pulled up beside
        it. At that point, the truck drove away and made a right
        turn onto Harmony Road. Officer Davis and Officer Martz
        continued on their patrol.
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         Approximately ten minutes later the officers were on Rock
         Pride Drive when they saw the same pickup truck sitting in
         the middle of the road. The officers pulled behind the
         pickup truck. As they were doing so, the truck began to
         drive off. The officers activated their overhead lights and
         conducted a stop of the truck. The officers reported the
         stop at 1:54 [a.m.] The stop was not based on a suspicion
         that the operator of the vehicle had violated any provision
         of the Motor Vehicle Code, according to the testimony of
         Officer Davis. Officer Davis, according to his testimony, had
         not observed a traffic violation. The stop was conducted
         solely to determine if the driver was lost or in need of
         assistance, Officer Davis testified. The driver of the truck,
         identified in the course of the stop as [Appellant], was not
         free to leave once the overhead lights were activated,
         Officer Davis testified.    The truck was located on the
         campus of Slippery Rock University both times it was
         observed in the stationary position. There was no traffic in
         either areas where the truck was observed that would have
         caused it to stop, Officer Davis testified. Officer Davis
         testified that he believed the students of Slippery Rock
         University were still on holiday break at the time of the
         incident, though he could not be sure that was the case.
         While the areas where the truck was observed to be
         stopped were not typically areas where vehicles park, the
         truck did not impede traffic, Officer Davis testified.

Trial Court Opinion, 10/21/2014, at 1-2.

       Appellant was arrested on suspicion of driving under the influence of

alcohol (DUI).      The Commonwealth charged Appellant with DUI general

impairment, DUI high rate of alcohol, and restrictions on alcoholic

beverages.1     On May 8, 2014, Appellant filed an omnibus pretrial motion

arguing that the traffic stop was illegal because police lacked reasonable

suspicion or probable cause to believe that criminal activity was afoot. The
____________________________________________


1
    75 Pa.C.S.A. §§ 3802(a), 3802(b), and 3809, respectively.



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trial court held a suppression hearing on July 11, 2014 wherein Officer Davis

testified.   At the conclusion of the hearing, the trial court requested legal

briefs from both parties concerning the duties of campus police.           Both

parties complied. On October 14, 2014, the trial court entered an order, and

filed an accompanying opinion, denying Appellant’s pretrial motion to

suppress.    On November 14, 2014, following a bench trial, the trial court

found Appellant guilty of the aforementioned charges.       On December 11,

2014, the trial court sentenced Appellant to six months of intermediate

punishment, the first thirty days on house arrest, fifty hours of community

services, and a $750.00 fine. This timely appeal resulted.2

       On appeal, Appellant presents the following issue for our review:

         Did the [t]rial [c]ourt commit an error of law when it denied
         [] Appellant’s [o]mnibus [p]re-[t]rial [m]otion to [s]uppress
         and concluded that Officer Frank Davis, of the Slippery Rock
         University Police Department, had a reasonable basis for
         stopping [] Appellant’s vehicle, and that said traffic stop
         was not in violation of Article One Section Eight of the
         Constitution of the Commonwealth of Pennsylvania and the
         Fourth and Fourteenth Amendments to the United States
         Constitution[?]

Appellant’s Brief at 4.

____________________________________________


2
    Appellant filed a notice of appeal on January 8, 2015. On January 12,
2015, the trial court entered an order directing Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant complied timely on February 2, 2015. On February 9, 2015, the
trial court filed an order under Pa.R.A.P. 1925(a) stating that it was relying
on its prior opinion entered on October 14, 2014, as justification for denying
suppression.



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      Appellant claims that police lacked reasonable suspicion or probable

cause to stop him and, thus, suppression was warranted.            In sum, he

argues:

          [I]t is clear that the interaction between Officer Davis and
          [Appellant] is not a mere encounter. Officer Davis did not
          just approach [Appellant] to speak to him; instead he
          activated his emergency lights and stopped [Appellant’s]
          vehicle.    It is clear that this progressed past a mere
          encounter because the [o]fficer clearly stated that
          [Appellant] was not free to continue on his way.           If
          [Appellant] would have attempted to leave without speaking
          to the [o]fficer, he would have been pursued. The [t]rial
          [c]ourt specifically determined that initial interaction
          between Officer Davis and [Appellant] was not a mere
          encounter. However, the trial court’s determination that
          [Appellant] was not [the] subject of an improper detention
          is unfounded.

          [] Officer Davis testified there were no vehicle code
          violations that were the basis of the traffic stop.
          Furthermore, there were no outward signs of distress from
          [Appellant’s] vehicle that would indicate he was in need of
          assistance. He was on Slippery Rock University property
          that is open to the public. His vehicle was not blocking
          traffic and when Officer Davis pulled up to him on two
          occasions he moved along not initiating contact with Officer
          Davis. If Officer Davis was truly seeking to offer assistance
          then there was no reason for him to activate his emergency
          lights. He did so to stop and investigate the vehicle. His
          words are prophetic when he stated that [Appellant] was
          not free to continue on his way once he activated his lights.
          This raised the interaction between [Appellant] and Officer
          Davis to an investigative detention that was not based on
          any type of reasonable suspicion.

Id. at 16.

      This Court's well-settled standard of review of a denial of a motion to

suppress evidence is as follows:


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

and quotation marks omitted).

      Contacts between the police and citizenry fall within three general

classifications:

         The first level of interaction is a ‘mere encounter’ (or
         request for information) which 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 a 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.
         Police must have reasonable suspicion that a person seized
         is engaged in unlawful activity before subjecting that person
         to an investigative detention.

         Reasonable suspicion exists only where the officer is able to
         articulate specific observations which, in conjunction with
         reasonable inferences derived from those observations, led


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        him reasonably to conclude, in light of his experience, that
        criminal activity was afoot and that the person he stopped
        was involved in that activity. Therefore, the fundamental
        inquiry of a reviewing court must be an objective one,
        namely, whether the facts available to the officer at the
        moment of intrusion warrant a person of reasonable caution
        in the belief that the action taken was appropriate.

Commonwealth v. Goldsborough, 31 A.3d 299, 305-306 (Pa. Super.

2011) (internal citations and brackets omitted).

     Our Supreme Court recently affirmed this Court’s memorandum

decision by per curiam order in Commonwealth v. Barnes, -- A.3d --,

2015 WL 5033572 (Pa. 2015) which examined a similar factual scenario and

issue as presented herein. In Barnes, while on routine patrol at 3:00 a.m.,

police officers observed Barnes make a left turn, pull off the roadway near a

car dealership, and shut her headlights off.   The arresting officer testified

that he thought the driver may be experiencing vehicular problems, but also

thought it was suspicious that the vehicle pulled over near the car

dealership.   This Court determined that the encounter amounted to an

investigative detention because the officer admitted that Barnes was not free

to leave. Barnes also testified that upon activation of the police’s overhead

lights, she believed she was not free to go. Our Court determined that in

such a scenario a reasonable person would not think she was free to leave.

Thus, we determined that the use of overhead police lights constituted a

seizure requiring reasonable suspicion that criminal activity was afoot.

Because the officer in Barnes had only a particularized hunch that criminal

activity was occurring, this Court affirmed the trial court’s grant of


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suppression.   Thereafter, the Pennsylvania Supreme Court affirmed our

Court’s decision by per curiam order.

     In this case, Officer Davis testified as follows:

        I told [my partner,] Officer Martz [do] you see that truck
        sitting over there[?] He’s been there for sometime, and he
        said, yeah, I noticed it, too, and I said let’s go over and see
        if it’s lost, see what the deal is because it’s not normal for a
        vehicle to sit that long at an intersection. So, we pulled up
        beside it and as soon as we did, we didn’t even get a
        chance to communicate with the driver. The truck took off.
        Made a right onto North Road and went back towards
        Harmony Road. We didn’t think anything of it. We figured,
        okay, he found his way or whatever, everything’s all right
        so we continued on our patrol. It was again I didn’t look at
        the clock or anything. I’m just guessing it was probably
        another ten, probably another ten minutes after our initial
        contact with that vehicle we were on another road on
        campus called Rock Pride Drive. We were coming down it,
        and we see the pickup, exact same pickup truck just sitting
        there same thing in the middle of the road. So, and I asked
        Officer Martz I said is that the same truck, and he said,
        yeah, I think it is, so I said, well, let’s go see what’s going
        on. He’s obviously lost or something is wrong. So, again
        we went to pull up behind him. As soon as he saw us, again
        he started, he made a right-hand turn onto it’s like all
        stores, shop parking, it loops back onto Rock Pride Drive.
        He made a right-hand turn into that and at that point that’s
        when I turned on the lights, and approached him just to ask
        if he was all right, if he needed directions, and that’s when I
        came into contact with [Appellant].

N.T., 7/11/2014, at 5-6.

     When asked why Officer Davis initiated the traffic stop, he responded:

        Just to see if he was lost, if everything was okay, because
        this was the second time in under half an hour that he was
        stopped in the roadway, you know, for an extended period
        of time just sitting there. So, I was making an inquiry to



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        see if he needed any type of help, if he needed directions,
        whatever, you know.

Id. at 6-7.

      Officer Davis further testified that he did not observe Appellant commit

any traffic violations.    Id. at 8, 12-13.    He had no reason to believe

Appellant was involved in criminal activity. Id. at 13. Officer Davis stated

that once he activated the overhead police emergency lights, Appellant was

not free to leave.     Id. at 13.   In fact, Officer Davis would have pursued

Appellant if he had not stopped. Id.

      In light of Barnes were are compelled to find that the interaction

between the police and Appellant constituted a seizure requiring reasonable

suspicion.     Appellant moved his car twice when police approached in their

marked vehicle and stopped only after they activated their overhead lights.

A reasonable person in Appellant’s position would not have felt free to leave.

Thus, Officer Davis’ interaction with Appellant constituted an investigatory

detention.     As previously stated, Officer Davis did not witness any motor

vehicle code violations.       Further, he did not point to any specific

observations that would have led him to reasonably believe that criminal

activity was afoot.    As such, police did not have reasonable suspicion to

support the traffic stop. Hence, suppression was warranted. Accordingly, we

reverse the trial court’s denial of suppression and vacate Appellant’s

convictions.

      Order reversed. Judgment of sentence vacated.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2015




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