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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT WHEATLEY
Appellant No. 2467 EDA 2014
Appeal from the Judgment of Sentence July 18, 2014
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0001753-2014
BEFORE: BOWES, MUNDY, AND FITZGERALD* JJ.
MEMORANDUM BY BOWES, J.: FILED JULY 16, 2015
Robert Wheatley appeals from the judgment of sentence of one to two
years incarceration to be followed by one year probation imposed by the trial
court after it found him guilty of driving under the influence (“DUI”) highest
rate, third offense and a third offense DUI—general impairment. We affirm.
The trial court delineated the following facts.
On September 27, 2013, Officer Scott Patrick, an officer
with the Middletown Township Police, was on patrol near the
Summit Square Shopping Center. Officer Patrick was in full
uniform and driving a marked patrol vehicle. At approximately
3:45 a.m., Officer Patrick observed the Appellant driving a silver
Ford F150 pickup truck on Country Lane. Officer Patrick saw the
Appellant make a wider than normal turn onto Doublewooods
[sic] Road, which drew Officer Patrick's attention to the
Appellant. At that time, the Appellant pulled into the shopping
center, turned around, proceeded into a fire lane and stopped in
*
Former Justice specially assigned to the Superior Court.
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front of the Giant store. A passenger in the Appellant's vehicle
exited the truck and went into the Giant store.[1]
Officer Patrick pulled into the shopping center and noticed
that the Appellant had stopped in the fire lane, so he backed up
his vehicle until the driver’s [sic] side windows were alongside
each other. Officer Patrick stopped because he wanted to tell
the Appellant to park in a parking space rather than the fire
lane. Officer Patrick's window was down and he signaled for the
Appellant to roll his window down so he could speak with him.
The Appellant told Officer Patrick that he had stopped to
get cigarettes. At that time, Officer Patrick noticed a strong odor
of alcohol and that the Appellant was slurring his speech. Officer
Patrick then told the Appellant to stay where he was and turned
his patrol vehicle around to pull up behind the Appellant's
vehicle. Before he could do so, the Appellant pulled forward into
the Giant parking lot and parked his vehicle. Officer Patrick
pulled behind the Appellant and his overhead lights may have
been activated at that time. Another officer, Mary Alice Felt,
arrived at the scene at some point after Officer Patrick
positioned his vehicle behind the Appellant's vehicle.
Officer Patrick exited his patrol vehicle and approached the
Appellant's vehicle to ask for his license and registration. During
this exchange with the Appellant, Officer Patrick noticed that the
Appellant's speech was slurred, his breath smelled of alcohol, his
motor skills were slow, and he had difficulty finding his driver's
license and registration although they were in plain view. Officer
Patrick asked the Appellant where he had been and why he came
to Giant, to which the Appellant responded that he and his
brother were coming from their mother's house and came to
Giant to get cigarettes. Officer Patrick told the Appellant that he
suspected that he was under the influence, and the Appellant
stated that he had a few beers.
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1
A surveillance video of the encounter shows that the passenger, Appellant’s
brother, exited the vehicle after Officer Patrick initially stopped next to
Appellant and Appellant pulled away from the officer before parking.
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At that point, Officer Patrick asked the Appellant to exit the
truck and perform field sobriety tests. The Appellant nearly fell
as he exited the truck and had trouble balancing. Officer Patrick
began to explain the tests, at which time the Appellant stated
that he was drunk. Officer Patrick decided not to conduct field
sobriety tests because he did not believe that the Appellant
could complete them in his condition. Instead, Officer Patrick
administered a Portable Breathalyzer Test, which indicated the
presence of alcohol on the Appellant's breath. Officer Patrick
placed the Appellant under arrest for driving under the influence
at that time. After his arrest, the Appellant was taken to the
hospital for a blood alcohol test, which showed that Appellant's
blood alcohol content was 0.208% alcohol by volume.
Trial Court Opinion, 9/25/14, at 1-3 (citations omitted).
The Commonwealth charged Appellant with two counts of DUI.
Appellant filed a motion to suppress and the trial court conducted a
suppression hearing. Immediately after the hearing, the court denied
Appellant’s motion and Appellant agreed to a stipulated non-jury trial. The
evidence from the suppression hearing was incorporated and the court found
Appellant guilty of the aforementioned crimes. Subsequently, the court
sentenced Appellant to a term of one to two years imprisonment to be
followed by one year of probation. This timely appeal ensued.
The trial court directed Appellant to comply with Pa.R.A.P. 1925(b).
Appellant did so, and the court authored its Rule 1925(a) opinion. The
matter is now ready for this Court’s review. Appellant presents four issues
for our consideration.
1. The suppression court erred in finding that the contact
between Appellant and law enforcement on September 27,
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2013 at the Summit Square Shopping Center in Bucks County
was a mere encounter rather than an investigatory detention.
2. The suppression court erred in finding that the nature and
circumstances of the contact between Appellant and law
enforcement on September 27, 2013 did not constitute a
seizure of Appellant.
3. The suppression court erred in failing to suppress evidence
discovered as a result of the seizure of Appellant on
September 27, 2013 at the Summit Square Shopping Center
in Bucks County.
4. The suppression court erred in its findings of fact and
conclusions of law.
Appellant’s brief at 4 (footnote omitted).
Although Appellant purports to raise four separate issues, each claim is
necessarily intertwined. The critical issue in this matter is whether the
suppression court erred in finding that the officer’s initial interaction with
Appellant was a mere encounter. We find that it did not.
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.
We begin by noting that in evaluating interaction between law
enforcement and other citizens, Pennsylvania courts look to whether the
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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 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. However, to
conduct an investigative detention, police must have reasonable suspicion of
criminal activity. Id.
“[T]his standard 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). It is well-settled that “[m]ere presence near a high crime area or in
the vicinity of a recently reported crime, is not enough to warrant a Terry
stop.” Id. Rather, police “must observe irregular behavior before he
initiates a stop and, concurrently to his observation, he must hold a belief
that criminal activity is afoot.” 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). This standard is an
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objective one, and looks to the reasonable belief of the citizen and not the
subjective view of law enforcement. Commonwealth v. Lyles, 54 A.3d 76,
83 (Pa.Super. 2012). “In evaluating the circumstances, the focus is directed
toward whether, by means of physical force or show of authority, the citizen-
subject's movement has in some way been restrained.” Id. at 79-80.
Accordingly, we look to whether “in view of all surrounding circumstances, a
reasonable person would have believed that he was free to leave.” Id. at
79.
Appellant argues that Officer Patrick’s conduct in following him into the
grocery store parking lot, driving past him, and then reversing and asking
him to roll down his window constituted an investigative detention.
According to Appellant, these facts “evidenced a coercive show of authority
such that Appellant felt he was restrained and not free to leave, nor would a
reasonable person under the same circumstances have felt free to disregard
the officer and/or leave[.]” Appellant’s brief at 12.
Here, considering the totality of the circumstances, we find Appellant’s
position untenable. Appellant actually moved his truck away from the police
officer and parked his truck after being directed to roll down his window and
engaging in the initial interaction with the officer. Appellant’s brother also
exited the truck and went inside the grocery store. Further, even after
Appellant parked, Officer Patrick did not block Appellant’s ability to drive.
Clearly, the officer’s request to roll down Appellant’s window was not so
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coercive as to preclude Appellant from these actions. In this matter, a single
officer, without displaying his weapon, blocking Appellant’s ability to drive,
or turning on his lights, requested Appellant to roll down his window by
using a hand motion. When Appellant did so, the officer immediately
detected the odor of alcohol and that Appellant’s speech was slurred in
speaking with the officer. These actions are not so coercive as to be an
investigative detention. See Commonwealth v. Au, 42 A.3d 1002 (Pa.
2012); Lyles, supra. Appellant’s position is meritless.
Judgment of sentence affirmed.
Justice Fitzgerald joins in this memorandum.
Judge Mundy concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/16/2015
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