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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
KATHERINE LEIGH PREUSSER, :
:
Appellee : No. 18 EDA 2014
Appeal from the Order Entered November 27, 2013,
In the Court of Common Pleas of Delaware County,
Criminal Division, at No. CP-23-CR-0002915-2013.
BEFORE: FORD ELLIOTT, P.J.E., BOWES and SHOGAN, JJ.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 23, 2014
appeals from the order entered on November 27, 2013, that granted the
suppression motion filed by Appellee, Katherine Leigh Preusser. We affirm.
The suppression court made the following findings of fact:
charged with Possession of a Small Amount of Marijuana for
Personal Use,1 Possession of Drug Paraphernalia,2 Corruption of
Minors,3 and Furnishing Liquor to Minors4 relating to an incident
that occurred on March 23, 2013 at approximately 11 p.m. [The
arrest was conducted] by Trooper Jerrold Hatfield of the
Pennsylvania State Police.
1
35 [P.S.] §780-113(a)(31).
2
35 [P.S.] §780-113(a)(32).
3
18 Pa.C.S. §6301(a)(1)(i).
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4
18 Pa.C.S. §6310.1(A).
2. On July 2, 2013, Defendant, through counsel, filed a Motion to
Suppress, seeking to suppress all physical evidence, and
3. On November 1, 2013, a Suppression Hearing was held on
4. Trooper Hatfield, a 5½-year Patrol Trooper for Troop K Media
Patrol Barracks of the Pennsylvania State Police, testified at the
Suppression Hearing. (N.T. 11/1/13 p. 8).
5. Trooper Hatfield testified that at approximately 11:00 p.m. on
March 23, 2013, a Saturday night, he was on duty, in uniform,
and operating a marked Pennsylvania State Police patrol vehicle.
The Trooper was driving eastbound on Baltimore Pike in
Middletown Township, Delaware County, Pennsylvania
approaching the area of the Franklin Mint property.
6. The Trooper observed a vehicle pulling suddenly from the
right-hand lane of travel onto the shoulder and then into a
driveway. The driveway leads to a business that has been closed
numerous break-ins since its closing. (N.T. 11/1/13 p. 9).
7. Earlier in 2012, Trooper Hatfield handled a break-in at the
Franklin Mint property which was approximately 75 yards from
the Lobster Pot property and during that incident, scrap metal
was stolen from the Franklin Mint Museum. There have been
numerous incidents in the area, approximately 1-½ mile stretch
along Baltimore Pike, wherein the buildings have been stripped
of all their copper and scrap metal. The area has been posted
5
(N.T, 11/1/13 pp. 8-12).
5
D
evidence without objection as DS-1, (N.T. 11/1/13
p.105).[1]
1
The video recording of this incident was not included in the certified record,
and therefore, we did not consider it in rendering our decision. See
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building at the end of the driveway. The building was the site of
a former business ca
(N.T. 11/1/13 p. 13). As the vehicle attempted to travel down
the driveway, once the Trooper positioned his vehicle behind it,
the vehicle attempted to back down the driveway towards the
shoulder of the highway. Then, Trooper Hatfield stopped his car,
exited and approached the vehicle. The Trooper made a driver-
side approach of the vehicle and asked the driver for his license,
registration and insurance.
9. The driver was a Minor, who produced a Pennsylvania Junior
operate a vehicle after 11 p.m. (N.T. 11/1/13 pp. 13-15). The
Minor-driver told Trooper Hatfield that they pulled over because
his license had expired and the Defendant was going to begin
driving. (N.T. 11/1/13 p. 39). Trooper Hatfield questioned the
Minor about his whereabouts that evening. The Minor replied
that he was coming from the Granite Run Mall Movie Theater and
that his home was in Folsom, Pennsylvania. If he had left the
Movie Theater and headed directly home he was coming from
the wrong direction. The Trooper asked him what movie he had
seen and he re -18).
10. At that point, he asked the Defendant, the front-seat
passenger, to step out of the vehicle. As the Defendant stepped
cans between the passenger seat and the door, so when she
11/1/13 p. 16). The Defendant told the Trooper that they had
seen a romantic comedy movie in Chadds Ford, Pennsylvania,
but she did not recall the name of the movie. (N.T. 11/1/13 p.
17). When the Defendant was asked what her relationship was
Commonwealth v. Edwards, 71 A.3d 323, 324 n.1 (Pa. Super. 2013)
(stating that an appellate court is limited to considering only those facts
which have been duly certified in the record on appeal and, for purposes of
appellate review, what is not of record does not exist).
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mother through a school connection. (N.T. 11/1/13 p. 18). She
d it was registered
to her ex and it was in the process of being transferred over to
11. A third person, a Minor female, was in the rear seat of the
car. She was asked to exit the vehicle. She provided the Trooper
with her Ridley High School identification card and told the
Trooper that she was 17 years old. Trooper Hatfield questioned
her about her whereabouts that evening. She replied that they
were coming from the Granite Run AMC Theater and that they
had just seen the movie
11/1/13 p. 19). The Trooper testified that she smelled of alcohol.
He gave her a PBT, [portable] breath test, and her reading was
.022, indicating that she tested positively for some consumption
of alcohol.
12. At this point, the Defendant was arrested, taken into custody
and a tow was called for the vehicle. The Defendant was arrested
for Furnishing Alcohol to Minors. A search of the vehicle located:
a small amount of marijuana in the glove box, a water bong
behind th
passenger seat, and a partially consumed beer that was located
in the rear seat compartment.6 A search was conducted because
it was police department policy that when a vehicle was towed it
must be checked for valuables or contraband. (N.T. 11/1/13 pp.
22-23).
6
some unidentified pills in the trunk. However, they
. 11/1/13 p.
45).
13. Trooper Hatfield testified on cross-examination that he did
not get any 911 calls, or radio calls about burglaries on
Baltimore Pike on the evening of March 23, 2013. He did not get
any radio calls about burglaries at the former Lobster Pot on
Baltimore Pike that night. (N.T. 11/1/13 p. 25). He did not get
any calls about a silver, Toyota Corolla (a description of the
y 3 to 4 car
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lengths ahead of his vehicle and it was traveling within the speed
limit. (N.T. 11/1/13 p. 27). The driveway that the Toyota
entered contained a brick entrance-way within the first car
posted
on the brick entrance-way for that driveway that may not have
been visible from Baltimore Pike but would be visible once the
vehicle was stopped in the driveway. (N.T. 11/1/13 pp.29-30).
The Trooper testified that this area of Baltimore Pike is not very
well lit. (N.T, 11/1/13 p. 31).
Toyota, it made an abrupt lane change from its lane onto the
shoulder and into the driveway. The vehicle was approximately
one or two car lengths away, when the Trooper activated his
spotlight. The Toyota stopped within one car length of the
driveway. As soon as the vehicle pulled into the driveway, the
Trooper activated his lights and pulled in behind it. Once the
cle, the vehicle
Corolla is free to leave and just back out away from your car? A.
-31).
15. The Trooper testified that he pointed his flashlight at the
Minor-driver and asked him to step out of the vehicle. The Minor
driver to drive after 11 p.m. The Minor told the Trooper that the
reason they pulled the vehicle over was due to his license
expiring, the Defendant was going to begin driving. (The
Defendant had a nonrestricted license). The stop occurred just
after 11 p.m. The Trooper asked the driver if he had been
drinking and he replied that he had not. When the Trooper made
initial contact with the Minor-driver his eyes appeared bloodshot.
The Trooper administered a PBT, portable breath test, to him
and it indicated that he had not been drinking that night. (N.T.
11/1/13 p. 43).
16. Subsequently, the Trooper walked to the passenger-side
front door and asked the Defendant to exit the vehicle. She
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17. The Trooper testified that he was never in fear for his own
safety during the traffic stop. (N.T. 11/1/13 p.40). The
Defendant was an adult female and the driver was a male and
the rear-passenger was a female, both 17-year-old Minors.
18. The Defendant never gave the Trooper consent to search the
vehicle or trunk, nor did he ever obtain a warrant to search the
vehicle or trunk. (N.T. 11/1/13 p.41).
19. At the Suppression Hearing, as the parties viewed the
was about a car length up the driveway prior to the illumination
view the videotape the Trooper testified as follows:
Q. You put your lights on, the car begins to back up.
your lights on with the torch illuminating the interior
of this vehicle this car is trying to back out and
leave? A. It was not free to leave... He physically
free to leave, correct? A. Correct. Q. Even if they
could physically through some fancy maneuvering
observed no violations of the motor vehicle code,
right? A. Correct. (N.T. 11/1/13 pp. 55-57).
[20]. The Trooper also testified that he had no radio calls that
night that this car had committed any crimes. The last incident
that he had handled with respect to a crime committed in the
area, which was about 75 yards from the Lobster Pot property,
was in 2012. (N.T. 11/1/13 p.57).
Suppression Court Order, 11/27/13, at 1-5.
Based on these findings the suppression court concluded that Trooper
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an investigatory detention. Suppression Court Order, 11/27/13, at 8. The
Commonwealth filed a timely appeal.2
On appeal, the Commonwealth raises the following issues for this
suppress the evidence?
1. Did the trial court err by concluding as a matter of
law that the police lacked reasonable suspicion to
believe that criminal activity was afoot?
2. Did the trial court err by concluding as a matter of
law that the police obtained all evidence as a result
of the purported unconstitutional investigative
detention and, pursuant to Wong Sun[3] and the fruit
of the poisonous tree principle, the evidence should
be suppressed?
4
We begin by setting forth our standard and scope of review:
When the Commonwealth appeals from a suppression
order, this Court may consider only the evidence from the
2
The Commonwealth may appeal from an order that does not end the entire
case if it certifies in its notice of appeal that the order will terminate or
substantially handicap the prosecution. Commonwealth v. Lark, 91 A.3d
165, 166 n.1 (Pa. Super. 2014); Pa.R.A.P. 311(d). The Commonwealth
included this certification in its notice of appeal. Notice of Appeal, 12/18/13.
3
Wong Sun v. United States, 371 U.S. 471, 488 (1963) (which stands for
4
The argument portion of the C
into one discussion. Because these issues are interrelated, we shall address
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prosecution that, when read in the context of the record as a
whole, remains uncontradicted. In our review, we are not bound
determine if the suppression court properly applied the law to
because, as the finder of fact, it is the suppr
prerogative to pass on the credibility of the witnesses and the
weight to be given to their testimony.
Commonwealth v. Hudson, 92 A.3d 1235, 1241 (Pa. Super. 2014)
(citations omitted).
At the outset, we note that there are three distinct levels of interaction
between law enforcement and the general public. The first level is the mere
encounter, which need not be supported by any level of suspicion, but which
carries no official compulsion to stop or respond. Commonwealth v.
Clinton, 905 A.2d 1026, 1030 (Pa. Super. 2006). The second level is the
investigative detention, which must be supported by reasonable suspicion.
Id. Finally, the third level is an arrest or custodial detention, which must be
supported by probable cause. Id.
At issue in the case at bar is whether there was reasonable suspicion
this Court has explained:
Reasonable suspicion requires a finding that based on the
available facts, a person of reasonable caution would believe the
intrusion was appropriate.
Reasonable suspicion exists only where the officer is
able to articulate specific observations which, in
conjunction with reasonable inferences derived from
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those observations, led 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. Chambers
either the initial stop or the search is found to be unreasonable, the remedy
is to exclude the evidence derived from the illegal government activity as
Commonwealth v. Simmons, 17 A.3d 399,
403 (Pa. Super. 2011); Wong Sun, 371 U.S. at 488.
Here, the Commonwealth argues that the suppression court applied an
Brief at 19. The Commonwealth claims that the suppression court did not
properly consider the totality of the circumstances. Id. at 20-22.
Additionally, the Commonwealth argues that when the evidence is viewed
through the eyes of an experienced police officer, reasonable suspicion was
established. Id. We disagree.
The suppression court considered the totality of the circumstances and
correctly applied the proper standard and legal analysis relevant to
investigative detentions. We reiterate that the record reveals that Trooper
Hatfield saw a vehicle abruptly leave the roadway on a dimly lit street near
an area where there had been vandalism the previous year, and the trooper
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conceded that no motor vehicle violation was observed. While the trooper
could have approached the vehicle to check on the safety of the occupants,
where the occupants of the car would have been free to leave, the trooper
instead activated his emergency lights and seized the vehicle prior to any
indication of criminality.5
position that the trooper was reasonable in his conclusion that criminal
activity was afoot. As noted above, this Court is cognizant that the totality
determination as to when reasonable suspicion exists. Chambers, 55 A.3d
at 1215. However, the evidence on the record before us reveals only that
the trooper had a hunch that the occupants of this car may have intended to
vandalize property in the area. Pursuant to our standard of review, we
discern no error and conclude that the suppression court was correct in its
conclusion.
Moreover, because we conclude that the suppression court was correct
in finding that the initial stop of the car was illegal, the subsequently
discovered evidence was correctly suppressed as fruit of the poisonous tree.
Simmons, 17 A.3d at 403; Wong Sun, 371 U.S. at 488. Accordingly, we
5
Trooper Hatfield testified that Appellee and the occupants of the vehicle
were not free to leave. N.T., 11/1/13, at 33.
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conclude that the Commonwealth is entitled to no relief on appeal, and we
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/23/2014
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