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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF:                      :    IN THE SUPERIOR COURT OF
J.S.Z., A MINOR                          :          PENNSYLVANIA
                                         :
APPEAL OF:                               :         No. 1673 MDA 2017
COMMONWEALTH OF PENNSYLVANIA             :

                Appeal from the Order Entered October 12, 2017,
               in the Court of Common Pleas of Lycoming County
                Criminal Division at No. CP-41-JV-0000195-2017


BEFORE: LAZARUS, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED SEPTEMBER 04, 2018

      This case returns to us from the Court of Common Pleas of Lycoming

County. The Commonwealth filed its concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b) nunc pro tunc, and the trial court

filed a supplemental opinion pursuant to Pa.R.A.P. 1925(a), in which it

incorporated the contents of its October 12, 2017 order.        We shall now

consider the Commonwealth’s appeal of the trial court’s October 12, 2017

order granting appellee’s motion to suppress on its merits.1      After careful


1 The Commonwealth may appeal an interlocutory order suppressing evidence
when it provides a certification with its notice of appeal that the order
terminates or substantially handicaps the prosecution. Commonwealth v.
Whitlock, 69 A.3d 635, 636 n.2 (Pa.Super. 2013), citing Pa.R.A.P. 311(d).
In Commonwealth v. Gordon, 673 A.2d 866, 869 (Pa. 1996), our supreme
court held that the Commonwealth may appeal the grant of a defense motion
in limine that excludes Commonwealth evidence and has the effect of
substantially handicapping the prosecution. As the trial court ruling excludes
Commonwealth evidence, and the Commonwealth has certified that the effect
of the ruling substantially handicaps the prosecution, we find that this appeal
is properly before this court.
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review, we reverse the trial court’s October 12, 2017 order and remand for

further proceedings.

     The trial court summarized the factual and procedural history as follows:

           On July 25, 2017, a Petition alleging Delinquency was
           filed charging [J.S.Z. (“appellee”)] with one count of
           Driving Under the Influence pursuant to 75 Pa.C.S.
           §3802 and one count of Purchase, Consumption,
           Possession or Transportation of Alcohol pursuant to
           18 Pa.C.S. §6308. These allegations stem from an
           incident on June 6, 2017, at approximately 7:15 p.m.,
           at     which      time     Patrolman     Tyler   Bierly
           [(“Officer Bierly”)] of the Tiadaghton Valley Regional
           Police Department was investigating a harassment
           case involving a group of juveniles who had driven
           past the alleged victim several times shouting
           obscenities and giving her the finger. It was alleged
           that [appellee] . . . was driving the vehicle, and
           another juvenile[, B.G.,] who was in the front
           passenger seat[,] was the individual who was actually
           committing the alleged acts of harassment. There
           were no observations or allegations that [appellee]
           . . . was participating in any acts of harassment.

           Shortly after speaking with the alleged victim and
           witnesses, Officer Bierly spotted a vehicle which
           matched the description provided by the victim.
           Officer Bierly performed a traffic stop on the vehicle
           on Allegheny Street in Jersey Shore. According to
           Officer Bierly’s Affidavit of Probable Cause and his
           testimony, he approached the passenger side of the
           vehicle and made contact with [B.G.,] who [was]
           alleged to have been shouting obscenities and making
           obscene gestures. At this time, Officer Bierly testified
           that he smelled a strong odor of burnt marijuana
           coming from inside the car. According to the Incident
           Report, at this time the Officer made contact with
           [appellee] and again detected an odor of burnt
           marijuana. Officer Bierly asked [appellee] to step out
           of the vehicle and attempted to perform the Lack of
           Convergence test but was unable to complete it
           because the other juveniles in the vehicle were being


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             disruptive and required attention. All four juveniles
             were eventually removed from the vehicle and a
             search of the vehicle yielded an almost full bottle of
             Fireball Cinnamon Whiskey under the front passenger
             seat.

             [Appellee] was transported to Jersey Shore Hospital
             by Officer Bierly and was read the DL-26 Chemical
             Test warnings. According to the Officer’s incident
             report, [appellee] at that time did admit to smoking
             marijuana the previous day and consented to a blood
             draw, after which [appellee] was taken back to police
             headquarters. [Appellee] was read his Miranda[2]
             rights and, after refusing to speak to Officer Bierly
             without a lawyer present, was released to his father.
             The toxicology report from the lab indicated that
             [appellee] had reportable amounts of Amphetamine
             (likely from his ADHD medication), 11-Hydroxy
             Delta-9 THC, an active metabolite of THC, Delta-9
             Carboxy THC, an inactive metabolite of THC, and
             Delta-9 THC, the active ingredient in marijuana. As a
             result of the traffic stop, [appellee] was charged with
             one count of Driving Under the Influence pursuant to
             75 Pa.C.S. §3802 and one count of Purchase,
             Consumption, Possession or Transportation of Alcohol
             pursuant to 18 Pa.C.S. § 6308.

             ....

             [Appellee’s] Motion to Suppress avers that the police
             did not assert that they observed [appellee] who was
             the operator of the vehicle, commit any violation of
             the vehicle code nor did they articulate reasonable
             suspicion that [appellee] was engaged in criminal
             activity. As a result, [appellee] requests that the
             evidence obtained from the vehicle stop be
             suppressed.

Trial court order and opinion, 10/12/17 at 1-4.




2   See Miranda v. Arizona, 384 U.S. 436 (1966).


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      The trial court granted appellee’s suppression motion on October 12,

2017, on the grounds that the Commonwealth did not establish by a

preponderance of the evidence “that the evidence seized from [appellee’s]

person and vehicle was legally obtained.” (Id. at 5.) The Commonwealth

filed a notice of appeal to this court on October 26, 2017. On October 27,

2017, the trial court ordered the Commonwealth to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

      The Commonwealth failed to timely file its Rule 1925(b) statement. On

May 25, 2018, we remanded this case for the Commonwealth to file its

Rule 1925(b) statement nunc pro tunc.           The Commonwealth filed its

Rule 1925(b) statement on May 30, 2018.          The trial court then filed a

supplemental opinion pursuant to Pa.R.A.P. 1925(a) on May 31, 2018.

      The Commonwealth raises the following issue on appeal: “Whether the

trial court abused its discretion when it held that the vehicle in question was

stopped without reasonable suspicion[?]” (Commonwealth’s brief at 8.)

      Our governing standard of review for Commonwealth appeals of

suppression motions is as follows:

            When the Commonwealth appeals a suppression
            order, we consider only the evidence from [Appellee’s]
            witnesses together with the portion of the
            Commonwealth’s evidence which is uncontroverted.
            Our standard of review is limited to determining
            whether the suppression court’s factual findings are
            supported by the record, but we exercise de novo
            review over the suppression court’s conclusions of
            law. Further, appellate courts are limited to reviewing
            only the evidence presented at the suppression


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            hearing when examining a ruling on a pre-trial motion
            to suppress. It is within the suppression court’s sole
            province as factfinder to pass on the credibility of
            witnesses and the weight to be given their testimony.

Commonwealth v. Harris, 176 A.3d 1009, 1018 (Pa.Super. 2017)

(quotation marks and citations omitted).

      This court has held the following when reviewing the legality of a vehicle

stop for criminal activity not related to the Motor Vehicle Code:

            The United States Supreme Court in [Terry v. Ohio,
            392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968),]
            and in Adams v. Williams, 407 U.S. 143, 92 S.Ct.
            1921, 32 L.Ed.2d 612 (1972), has suggested that
            even in the absence of probable cause there may be,
            under certain circumstances, justification for a limited
            intrusion upon the privacy of an individual. Under
            these decisions the Court has suggested that a brief
            stop of a suspicious individual, in order to determine
            his identity or to maintain the status quo momentarily
            while obtaining additional information may in fact be
            reasonable although the officer at that time did not
            possess probable cause that would justify an arrest.
            In the Terry, supra and Adams, supra decisions,
            the Court was required to struggle with the balancing
            of the right of society and the right of an individual in
            street encounters. Because a motorist’s extreme
            mobility may otherwise allow him to avoid police
            confrontation, the State has an equally strong interest
            in these cases in stopping a moving vehicle to freeze
            momentarily a situation of suspected criminality.
            However, these decisions have made it clear that to
            justify the intrusion the police officer must be able to
            point to specific and articulable facts which taken
            together with rational inferences from those facts
            reasonably warranted the intrusion. See Adams v.
            [Williams], supra; Terry v. Ohio, supra. Thus, it
            is also clear that an investigative stop of a moving
            vehicle[,] to be valid[,] must be based upon objective
            facts creating a reasonable suspicion that the detained
            motorist is presently involved in criminal activity.


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Commonwealth v. Feczko, 10 A.3d 1285, 1288 (Pa.Super. 2010), appeal

denied, 25 A.3d 327 (Pa. 2011), quoting Commonwealth v. Murray, 331

A.2d 414, 418 (Pa. 1975) (some brackets in original).

            When an identified third party provides information to
            the police, we must examine the specificity and
            reliability of the information provided.            The
            information supplied by the informant must be specific
            enough to support reasonable suspicion that criminal
            activity is occurring.   To determine whether the
            information provided is sufficient, we assess the
            information under the totality of the circumstances.
            The informer’s reliability, veracity, and basis of
            knowledge are all relevant factors in this analysis.

Commonwealth v. Barber, 889 A.2d 587, 593-594 (Pa.Super. 2005),

quoting Commonwealth v. Korenkiewicz, 743 A.2d 958, 964 (Pa.Super.

1999) (en banc) (citations omitted).

      In the instant appeal, the specific facts articulated by Officer Bierly

warranted a stop of appellee’s vehicle, as the record indicates that

Officer Bierly was provided with specific and reliable information to support a

reasonable suspicion that criminal activity was occurring.            During the

suppression hearing, Officer Bierly provided the following testimony:

            Q     Who did you make contact with?

            A     I made contact with [A.S.] who told me that
                  he[r] sister was being harassed, and then made
                  contact with [R.] who told me that her
                  ex-boyfriend, [B.G.], was riding around with his
                  friends. Kept riding by the house and shouting
                  obscenities and giving the finger.




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            Q      And did [A.S.] identify anybody else in the
                   motor vehicle besides [B.G.]?

            A      Um, they identified [B.G.] and they weren’t
                   positive on the other individuals in the car.

            Q      Okay. And were -- did they ask you to do
                   something as a result of this activity?

            A      Yeah, they asked me to make contact with
                   [B.G.] and get him to stop harassing them or
                   driving by the house.

            ....

            Q      Before I ask you the next question I want to
                   back up a little bit. Did they provide you with a
                   description of the automobile in question?

            A      Yeah, a silver or gold sedan.

            Q      Okay. And . . . did you see a vehicle close to
                   that description go by your location?[3]

            A      Yeah, I saw a silver Toyota sedan and I could
                   see [B.G.] seated in the passenger seat.

            Q      And I take it you had prior contact with [B.G.]
                   that’s how you know him?

            A      Yes.

            Q      As a result of that car passing by you what did
                   you do, Officer?

            A      I performed a traffic stop on the vehicle. The
                   driver of the vehicle pulled the vehicle into --
                   there’s a lane in front of the YMCA.

            Q      Okay. What was the basis of you activating your
                   overhead lights and initiating a traffic stop?

3Officer Bierly had left the S.’s house and was in the area of Allegheny Street
and Wylie Street in Jersey Shore. (See notes of testimony, 9/28/17 at 14.)


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            A     The basis was that I was          notified of a
                  harassment issue and it           matched the
                  description. Four individuals    in the car. I
                  wanted to stop the vehicle to    try to end this
                  misconduct.

            Q     Okay. And what -- I take it you approached the
                  vehicle; is that correct?

            A     Yes, I did.

            Q     And if I did ask you that question, I apologize.
                  What -- where was [B.G.] in the vehicle?

            A     He was in the front passenger seat.

            Q     And was this the information provided by the
                  [S.] ladies as to his location?

            A     Yes.

Notes of testimony, 9/28/17 at 13-15.

      As noted above, our cases dictate that in order to initiate an

investigative stop of a motor vehicle based on information obtained from a

third party, the information must be specific and reliable enough to justify

reasonable suspicion of criminal activity. Officer Bierly’s testimony reflects

that A.S. and R.S. specifically told him that B.G. was riding around with a

group of his friends in a gold or silver sedan, and that B.G. was engaged in

criminal activity—in this case, harassment. Shortly after speaking with A.S.

and R.S., Officer Bierly observed B.G. riding in the passenger seat of a silver

Toyota sedan in a manner consistent with the information that he was

provided.   Accordingly, Officer Bierly possessed the requisite reasonable



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suspicion to initiate a traffic stop of appellee’s vehicle.   Officer Bierly was

permitted to perform an investigatory detention only for as long as necessary

to dispel the suspicion of criminal activity. Commonwealth v. Strickler, 757

A.2d 884, 889 (Pa. 2000). In this case, the initial purpose of the stop was to

talk to B.G. to give him a warning that if he continued to harass R.S., he would

be cited for harassment. (Notes of testimony, 9/28/17 at 17.)

      Appellee argued, and the trial court concluded, that the entire stop was

illegal because Officer Bierly was concerned with suspicious criminal behavior

of the passenger, B.G., not the driver, appellee.       (Trial court order and

opinion, 10/12/17 at 4-5.) This distinction is misplaced. An officer can stop

a vehicle based on reasonable suspicion of alleged criminal activity occurring

by anyone in the vehicle, not just the driver. See, e.g., U.S. v. Hensley,

469 U.S. 221, 226-27 (1985); U.S. v. Mathurin, 561 F.3d 170, 173 (3d Cir.

2009). Here, the officer had reasonable suspicion to stop the car to talk with

B.G., a passenger in the vehicle.

      The trial court then overlooked the events that occurred after the car

was validly stopped and that supported the subsequent arrest of the driver

and search of the vehicle. As the Commonwealth argued at the suppression

hearing, the strong odor of burnt marijuana that the officer noticed coming

from the car gave the officer an independent basis to question to the driver:

            The basis of the officer initiating the traffic stop was
            the information provided by the [S.] girls that [B.G.]
            was involved [in] harassing activity. It was not until
            he encountered [B.G.] that he detected the strong


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            odor emanating from within the vehicle that he then
            effectuated a traffic stop involving the driver.

            Without belaboring the point, the officer had
            reasonable suspicion that [B.G.] was involved in some
            sort of activity, which enabled him to stop the vehicle.
            Upon approaching the vehicle is when he then got a
            higher level of suspicion of probable cause that
            possibly the operator was operating the vehicle under
            the influence when he could detect a very strong odor
            of marijuana coming from the passenger side that he
            asked [appellee] to remove himself from the driver’s
            side at which point in time, again, he detected a
            strong odor of marijuana.

Notes of testimony, 9/28/17 at 24.

      We agree that the strong odor of burnt marijuana coming from inside

the car gave the officer independent reasonable suspicion to question

appellee, as the driver of the vehicle. See Commonwealth v. Kemp, 961

A.3d 657, 668 (Pa. Super. 2015). As Officer Bierly testified, once he detected

the strong odor of marijuana, he “then made contact with the driver”; the

strong odor of marijuana is what caused him to proceed further. (Notes of

testimony, 9/28/17, at 17.) The marijuana smell gave the officer probable

cause to search the vehicle. The search resulted in the discovery of alcohol in

the vehicle, which was followed by the consented blood draw from the driver.

      The evidence obtained as a result of the traffic stop is admissible.

Therefore, we find that the trial court abused its discretion when it determined

that the Commonwealth failed to establish “that the evidence seized from

[appellee’s] person and vehicle was legally obtained,” and we remand this




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case to the trial court for further proceedings. (Trial court opinion and order,

10/12/17 at 5.)

      Order reversed. Case remanded for further proceedings consistent with

this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 09/04/2018




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