J-S21035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                           Appellee

                    v.

SEDRICK T. SMITH,

                           Appellant                No. 2265 EDA 2015


            Appeal from the Judgment of Sentence July 1, 2015
           In the Court of Common Pleas of Montgomery County
            Criminal Division at No(s): CP-46-CR-0009342-2013

BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                     FILED MARCH 04, 2016

      This is an appeal from the judgment of sentence entered in the Court

of Common Pleas of Montgomery County, which, sitting as finder of fact in a

non-jury trial, found Appellant guilty of one count of DUI and two counts of

Driving Under a Suspended License-DUI related.       Appellant contends the

suppression court erroneously determined that he was subjected to a lawful

traffic stop. We affirm.

      The trial court aptly summarizes the factual history pertinent to the

suppression issue before us.

      On November 9, 2013 at approximately 5:17 a.m., Lower
      Moreland Patrol Sergeant John Stevens observed a suspicious
      vehicle, occupied by Appellant, which was parked next to a gas
      pump in a gas station. At the time Sgt. Stevens observed the
      vehicle, the gas station was closed for business and the property
      was not illuminated. Sgt. Stevens made a U-turn in order to
      enter the gas station and investigate the suspicious vehicle.
      Once Sgt. Stevens entered the gas station, Appellant drove his


*Former Justice specially assigned to the Superior Court.
J-S21035-16


        vehicle to the opposite side of the gas pump. Sgt. Stevens then
        activated his emergency lights and initiated a traffic stop.

        Sgt. Stevens approached Appellant and noticed that Appellant
        was exhibiting signs of intoxication.      Sgt. Stevens asked
        Appellant to perform sobriety tests, which confirmed his belief
        that Appellant was Driving Under the Influence (“DUI”). After
        Appellant was arrested, Sgt. Stevens read him the O’Connell
        warnings.fn Appellant then refused to submit to a blood draw.


        fn
           The phrase “O’Connell Warnings” means the officer must
        specifically inform a motorist that his driving privileges will be
        suspended for one year if he refuses chemical testing, and that
        the rights provided by the United States Supreme Court’s
        decision in Miranda v. Arizona, 384 U.S. 436 (1966) do not
        apply to chemical testing. See Commonwealth, Dept. of
        Transp., Bureau of Traffic Safety v. O’Connell, 555 A.2d
        873, 877-78 (Pa. 1989). . . .


        On June 4, 2014, [the trial court] held a hearing to decide
        Appellant’s Motion to Suppress. At the outset of the hearing,
        Appellant’s counsel stated that the only issue being challenged
        was the legality of the stop. [The trial court] denied Appellant’s
        motion the same day. . . . [Trial commenced on January 22,
        2015, wherein the court] found Appellant guilty of [DUI and]
        Driving Under a Suspended License-DUI related.


Trial Court Opinion, filed Sept. 24, 2015, at 1-2.

        On July 24, 2015, the trial court ordered Appellant to file and serve on

the court a Pa.R.A.P. 1925(b) statement within twenty-one days.              The

docket does not reflect compliance with Pa.R.C.P. 236.1         On August 11,

2015, Appellant filed a Rule 1925(b) statement but failed to serve a copy on

____________________________________________


1
    We discuss this in further detail below.



                                           -2-
J-S21035-16



the court.    The trial court issued a Rule 1925(a) opinion objecting to

counsel's failure to serve the Rule 1925(b) statement.

      Instantly, we ascertain whether Appellant complied with Pa.R.A.P.

1925(b)(1), which states in relevant part: “(1) Filing and service.—Appellant

shall file of record the Statement and concurrently shall serve the judge.

Filing of record and service on the judge shall be in person or by mail....”

Pa.R.A.P. 1925(b)(1) (emphasis added). We must also examine whether the

Trial court strictly complied with Pa.R.C.P. 236 when it ordered a Rule

1925(b) statement.      See In re L.M., 923 A.2d 505, 509–10 (Pa.Super.

2007) (holding, “strict application of the bright-line rule [of Rule 1925

waiver] necessitates strict interpretation of the rules regarding notice of Rule

1925(b) orders.” (citation omitted)); see also Pa.R.Crim.P. 114(B)-(C);

Pa.R.A.P. 1925(b)(2).

      Rule 236 states in pertinent part:

      Rule 236. Notice by Prothonotary of Entry of Order or
      Judgment

      (a) The prothonotary shall immediately give written notice of the
      entry of
            ***
            (2) any other order or judgment to each party's
            attorney of record or, if unrepresented, to each
            party. The notice shall include a copy of the order or
            judgment.

             (b) The prothonotary shall note in the docket the
             giving of the notice and, when a judgment by
             confession is entered, the mailing of the required
             notice and documents.



                                     -3-
J-S21035-16



Pa.R.C.P. 236(a)(2), (b).       Rule 236 mandates that the prothonotary give

“written notice of the entry of a court order to each party and to note on the

docket that notice was given.” Id. at 510 (emphasis added).

      If the docket does not show that notice of the entry of a Rule
      1925(b) order was provided to an appellant, then we will not
      conclude that the appellant's issues have been waived for failure
      to file a Rule 1925(b) statement. That a party may have
      actually   received  notice     is   not  determinative    under
      circumstances where the docket does not reflect that notice was
      sent.

In re L.M., 923 A.2d at 510 (emphases added and citations omitted).

      In this case, Appellant's counsel inexplicably failed to serve the trial

judge a copy of the Rule 1925(b) statement. See Pa.R.A.P. 1925(b). We

decline to find waiver, however, as the docket failed to reflect notice of the

entry of the order on Appellant. See In re L.M., 923 A.2d at 510. Because

counsel's failure to comply with well-settled law does not result in waiver of

Appellant's issues on appeal, we return to the procedural history.

      Appellant raises the following issue for our review:

      WHETHER THE TRIAL COURT ERRED IN DENYING
      APPELLANT SMITH’S MOTION TO SUPPRESS WHERE THE
      EVIDENCE PRESENTED AT SUPPRESSION FAILED TO
      ESTABLISH THAT THE OFFICER POSSESSED REASONABLE
      SUSPICION TO SUBJECT HIM TO AN INVESTIGATIVE
      DETENTION.

      Appellant’s brief at 5.

            Our standard of review of a denial of suppression is
      whether the record supports the trial court's factual findings and
      whether the legal conclusions drawn therefrom are free from
      error. Our scope of review is limited; we may consider only the
      evidence of the prosecution and so much of the evidence for the

                                       -4-
J-S21035-16


      defense as remains uncontradicted when read in the context of
      the record as a whole. Where the record supports the findings of
      the suppression court, we are bound by those facts and may
      reverse only if the court erred in reaching its legal conclusions
      based upon the facts.

      Commonwealth v. Reppert, 814 A.2d 1196, 1200 (Pa.Super. 2002)

(citations omitted).

      We begin by noting that in considering interaction between law

enforcement and other citizens, Pennsylvania courts look to whether the

subject interaction is a mere encounter, an investigatory detention, or a

custodial detention, i.e., an arrest.   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 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.

      On November 19, 2013, Sergeant John Stevens of the Lower Moreland

Township Police Department was approaching the intersection of Huntingdon

Pike and Byberry Road at about 5:17 a.m. when he observed in the

darkness the silhouette of a car parked behind the gas pumps at the Citgo

gas/service station. N.T. 6/4/15 at 5. The gas station was still closed for

the night and completely dark, and the car was difficult to see behind the


                                    -5-
J-S21035-16



pumps, but Sergeant Stevens was able to make out the car and noticed that

its interior and exterior lights were off. Given the station’s occasional history

of overnight burglaries, including one within the prior year, and because it

was the sergeant’s 13 years’ patrolling experience that cars left overnight at

the lot were parked along a boundary fence and not behind the gas pumps,

he decided to turn around and investigate the presence of the car. N.T. at

6-7.

       Less than two minutes later, Sergeant Stevens drove onto the Citgo lot

and slowly approached the subject car. The cabin of the car was dark, but

the sergeant could see two individuals inside before the driver, Appellant,

immediately started the car and began to pull away, circling around the

pumps without ever activating the car’s headlights.           At this moment,

Sergeant Stevens turned on his overhead lights and the car stopped. N.T. at

16-18.    As noted above, the sergeant’s investigation culminated with his

arrest of Appellant on suspicion of DUI.

       The parties do not dispute that Sergeant Stevens initiated an

investigative detention at the moment he activated his overhead lights to

stop Appellant.    The question presented is whether the detention was

supported by reasonable suspicion of criminal activity.

             A police officer may detain an individual in order to
       conduct an investigation if that officer reasonably suspects that
       the individual is engaging in criminal conduct. Commonwealth
       v. Cook, 558 Pa. 50, 735 A.2d 673, 676 (1999). “This standard,
       less stringent than probable cause, is commonly known as
       reasonable suspicion.” Id. In order to determine whether the


                                      -6-
J-S21035-16


      police officer had reasonable suspicion, the totality of the
      circumstances must be considered. In re D.M., 566 Pa. 445,
      781 A.2d 1161, 1163 (2001). In making this determination, we
      must give “due weight ... to the specific reasonable inferences
      [the police officer] is entitled to draw from the facts in light of
      his experience.” Cook, 735 A.2d at 676 (quoting Terry v. Ohio,
      392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Also,
      the totality of the circumstances test does not limit our inquiry to
      an examination of only those facts that clearly indicate criminal
      conduct. Rather, “[e]ven a combination of innocent facts, when
      taken together, may warrant further investigation by the police
      officer.” Cook, 735 A.2d at 676.

Commonwealth v. Rogers, 578 Pa. 127, 134, 849 A.2d 1185, 1189

(2004).   The reasonable suspicion test “is met ‘if the police officer's

reasonable and articulable belief that criminal activity was afoot is linked

with his observation of suspicious or irregular behavior on behalf of the

particular defendant stopped.’”    Commonwealth v. Kearney, 601 A .2d

346, 348 (Pa.Super. 1992) (citing Commonwealth v. Espada, 528 A.2d

968 (Pa.Super. 1987)).

      We discern from the record that Sergeant Stevens confronted

circumstances that were suspicious and irregular when viewed against his

thirteen years’ experience of patrolling an area very familiar to him. In that

sense, the suppression court found, the sergeant presented as a very

credible witness whose suspicions were informed by the fact that the

community he patrolled was a “really small place” where one “get[s] to

know what’s what very easily.” N.T. at 33. Because it was not the practice

of the service station to park cars overnight behind the gas pumps, and the

station had been the subject of occasional overnight burglaries, the sergeant



                                     -7-
J-S21035-16



reasonably decided to check the lot more closely.         As he approached, he

observed two individuals immediately start the vehicle and begin to pull

away without turning on the car’s headlights. At this moment, the totality of

circumstances supplied the sergeant with reasonable suspicion to maintain

the status quo by detaining the car, and it was only at this point that the

sergeant activated his overhead lights and effectuated a traffic stop.

       Appellant argues that his case falls squarely under Commonwealth v.

DeWitt, 608 A.2d 1030 (Pa. 1999).                In DeWitt, our Supreme Court

invalidated a nighttime investigative stop of a car, parked on both the berm

and the edge of a church parking lot known to attract juvenile delinquency,2

after its occupants acted furtively3 and started-off upon seeing police. The

Court first rejected motor vehicle code and trespass-based grounds for the

stop before it considered whether the officers’ observations created

reasonable suspicion warranting a stop under Terry. Reasonable suspicion

was lacking, the Court reasoned, where neither the location of the car nor

the activity in which it was engaged was consistent with the type of reported

activity that had previously occurred in the parking lot.     This left only the
____________________________________________


2
  Testimony established that “the police had received notice from St. Paul's
Church to check for suspicious vehicles, i.e., kids, underage drinking, laying
rubber, doing donuts in the parking lot and that nature.” Id. at 530 Pa.
299, 1034 n. 2.
3
  The car was located in an open area with its interior cabin light turned on.
The occupants turned the cabin light off and looked as if they were
attempting to hide something before placing the car in drive. Id. at 1034.



                                           -8-
J-S21035-16



observation of flight,4 which, the court reasoned, could not by itself support

a stop. DeWitt, 608 A.2d at 1034.

       This Court applied DeWitt to discredit an investigative detention of a

driver who acted furtively in his parked car upon seeing police.           In

Commonwealth v. McClease, 750 A.2d 320 (Pa.Super. 2000), a post-

midnight police patrol was driving down a narrow, car-lined, one-way

residential street known for drug, alcohol, and weapon-related crime when

officers observed McClease sitting alone in his legally parked car in the

darkness underneath a railroad overpass.         McClease sat with his head

lowered as if he was looking at his hands.       As the cruiser was passing,

McClease looked up and reacted to the police presence by raising his

eyebrows, widening his eyes, and immediately lowering his body.        Id. at

322-23. The officers stopped and ordered McClease to stay in his vehicle as

he was attempting to open the driver’s side door. Id. at 323. During the

course of the stop, officers detected a marijuana blunt, an open container of

alcohol, and, pursuant to McClease’s invitation to “check the whole car,” 39

bags of crack cocaine and 2 bags of marijuana in the trunk. Id. Arrested

and charged with various drug-related crimes, Appellant filed a motion to

suppress evidence, which the court denied.         McClease was eventually

convicted and sentenced to one to two years’ imprisonment.
____________________________________________


4
  The car only began movement from the scene when police stopped it.
Apparently, headlong flight was not attempted. Id. at 1034.



                                           -9-
J-S21035-16



      A panel majority of this Court vacated judgment of sentence, finding

that officers failed to support their investigative detention of McClease with a

demonstration that reasonable suspicion of criminal activity existed.       The

majority reasoned that if in DeWitt “the combination of furtive movements,

late time of night, previous reports of criminal activity in the area, even

when accompanied by flight, [did] not establish an adequate basis for

reasonable suspicion[,]” then the comparatively weaker evidentiary proffer

against McClease—lacking evidence of flight—likewise failed to substantiate

an investigative detention. Id. at 326.

      What distinguishes the case sub judice from DeWitt and McClease is

that Appellant’s secretive placement of his unilluminated car on a dark,

private lot was consistent with a stealth approach one would reasonably

expect to find in an overnight burglary attempt. In DeWitt, the Supreme

Court discerned “absolutely no evidence” that the parked car straddling the

boundary between the berm of the road and the edge of the church parking

lot was engaged in the type of criminal activity of which police had been

previously notified.   Id. at 1034.    In McClease, police saw only a man

merely present in a high-crime neighborhood, his face cast downward as if

looking at his hands while he sat in a car parked legally on a public street.

Furtive reactions to a police presence increased the degree of suspicion in

each case, but not to a degree where the relatively innocuous underlying

behavior otherwise observed by police reasonably could be viewed as part of

an ongoing criminal process.

                                      - 10 -
J-S21035-16



      In contrast, the nighttime, after-hours presence of an occupied,

darkened car positioned to obscure its detection from the street bore a close

nexus to a suspected burglary in progress consistent with past reports of

burglaries at the station.   It was highly irregular, according to Sergeant

Stevens, to see a car parked overnight behind the pumps. When viewed in

combination with Appellant’s furtive attempt to drive away—forgetting to

activate his headlights despite the darkness—in reaction to the arrival of the

marked police cruiser, the facts known to the sergeant at that moment

justified a brief stop and investigation into why Appellant and his passenger

were there and whether the station displayed signs of illegal entry.

Accordingly, we hold that Sergeant Stevens was constitutionally authorized

to execute a brief stop to maintain the status quo while he attempted to

obtain more information.     As such, we reject as meritless Appellant’s

challenge to the order denying his motion to suppress evidence of his DUI

and related offenses.

     Judgment of sentence is affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/2016




                                    - 11 -
