J-S63011-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

MICHAEL PAUL FRITZ,

                            Appellant                 No. 810 MDA 2014


             Appeal from the Judgment of Sentence March 6, 2014
                 In the Court of Common Pleas of Perry County
              Criminal Division at No(s): CP-50-CR-0000459-2012


BEFORE: BOWES, PANELLA, and PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                          FILED OCTOBER 15, 2014

       Michael Paul Fritz appeals from the judgment of sentence of two to

thirty days incarceration to be followed by twelve months probation imposed

after the court found him guilty of possession of a small amount of

marijuana and possession of drug paraphernalia. We affirm.

       Marysville Chief of Police, Carl Lehman, was on foot patrol at the Lions

Club Carnival in Marysville at approximately 9:20 p.m. on August 4, 2012.

He observed Appellant and another individual exit a wooded area, which is

generally not accessible, and is known as a location where individuals

frequent to smoke marijuana. Chief Lehman approached the two men. As

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*
    Retired Senior Judge assigned to the Superior Court.
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he did so, he immediately detected a strong odor of burnt marijuana

emanating from both individuals. Chief Lehman then patted down the men.

On Appellant’s companion, he discovered brass knuckles. In conducting the

pat-down of Appellant, Chief Lehman felt a pack of cigarettes and asked if

that was what Appellant was carrying.        Appellant responded in the

affirmative and removed the cigarette package. Due to the strong smell of

marijuana coming from Appellant, Chief Lehman asked Appellant if there

was anything else inside the cigarette pack. Appellant responded that there

was a marijuana blunt and showed it to the officer.      Accordingly, Chief

Lehman filed charges against Appellant for possession of a small amount of

marijuana.    Appellant filed a motion to suppress, contending that Chief

Lehman did not have reasonable suspicion to conduct an investigative

detention.    The Commonwealth countered that Chief Lehman’s initial

interaction was a mere encounter which ripened into an investigative

detention once he smelled the marijuana.    The suppression court ruled in

favor of the Commonwealth.

     Thereafter, Appellant proceeded to a non-jury trial with a different

judge presiding.   The court found Appellant guilty of possession of drug

paraphernalia and possession of a small amount of marijuana.     The court

imposed a sentence of two to thirty days incarceration on the possession of

a small amount of marijuana count and twelve months probation for the

drug paraphernalia charge. This timely appeal ensued.


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       The trial court directed Appellant to file and serve a Pa.R.A.P. 1925(b)

statement.     Appellant complied, and the court authored a Rule 1925(a)

opinion.   The matter is now ready for our consideration.     Appellant’s sole

issue on appeal is, “Did the trial court err in not suppressing the evidence

which was introduced at trial as the result of a warrantless search upon the

Defendant and which ultimately led to conviction?” Appellant’s brief at 10.1

       In evaluating a suppression ruling, we consider the evidence of the

Commonwealth, as the prevailing party below, and any evidence of the

defendant that is uncontradicted when examined in the context of the

suppression record.         Commonwealth v. Sanders, 42 A.3d 325, 330

(Pa.Super. 2012).        This Court is bound by the factual findings of the

suppression court where the record supports those findings and may only

reverse when the legal conclusions drawn from those facts are in error. Id.

       Appellant’s argument hinges on alleged inconsistencies between Chief

Lehman’s suppression hearing and trial testimony.       Essentially, Appellant

challenges the credibility of Chief Lehman at the suppression proceeding and

maintains that Chief Lehman “had already formulated a reasonable suspicion

without even seeing or observing the Appellant.” Appellant’s brief at 13. In
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1
  Appellant’s brief contains an order entirely unrelated to this case as the
purported order being appealed from at the beginning of the brief. However,
Appellant did attach the proper order as well. We also note that Appellant’s
brief recites the standard and scope of review for a sufficiency of the
evidence claim, despite his sole issue on appeal being related to
suppression.



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Appellant’s view, Chief Lehman was proceeding to investigate the area

before encountering Appellant.      Of course, this is largely immaterial.         An

officer is permitted to investigate an area and may have a mere encounter

with a person as he does so. Appellant continues that his exiting a wooded

area is not an indication of illegal activity and that Chief Lehman had no

grounds to stop him. According to Appellant, since Chief Lehman was not

authorized to detain him, Chief Lehman’s pat-down search was unlawful.

      The   Commonwealth      replies     that   the   initial   interaction   between

Appellant and Chief Lehman was a mere encounter. It contends that Chief

Lehman obtained reasonable suspicion that criminal activity was afoot when

he detected the strong odor of burnt marijuana on the person of Appellant

and his companion. Accordingly, it reasons that the pat-down of Appellant

was lawful and points out that Appellant voluntarily disclosed that his

cigarette pack contained a blunt.

      In evaluating interaction between law enforcement and other citizens,

Pennsylvania courts look to whether the interaction is a mere encounter, an

investigatory detention, or a custodial detention, i.e., an arrest. The latter is

not in question herein. A mere encounter does not require police to have

any level of suspicion      that    the    person is engaged in wrongdoing.

Commonwealth v. Downey, 39 A.3d 401, 405 (Pa.Super. 2012). At the

same time, such an encounter does not carry any official compulsion for the

party to stop or respond. Id. An investigative detention, however, subjects


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an individual to a stop and short period of detention. Id. This seizure does

not involve actions that are so coercive as to comprise the equivalent of an

arrest.   Id.     To conduct an investigative detention, police must have

reasonable suspicion of criminal activity.        Id.   We consider what level of

interaction     occurred   under   a   totality    of   the   circumstances   test.

Commonwealth v. Williams, 73 A.3d 609, 615-616 (Pa.Super. 2013).

      Here, we find that Chief Lehman’s approach toward Appellant was a

mere encounter. See Commonwealth v. Guess, 53 A.3d 895 (Pa.Super.

2012).     Once Chief Lehman detected the strong odor of marijuana

emanating from Appellant’s person, he had reasonable suspicion to pat down

and detain Appellant. Since the detention was not unlawful, and Appellant

conceded that he possessed marijuana, his suppression issue does not

entitle him to relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2014




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