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HomeMy WebLinkAbout98-1470 criminal appealJ. S55021/99 COMMONWEALTH OF PENNSYLVANIA, Appellee V. MARK ALLAN YOHE, Appellant IN THE SUPERIOR COURT OF PENNSYLVANIA No. 109 MDA 99 Appeal from the Judgment of Sentence entered December 29, 1998 in the Court of Common Pleas of Cumberland County, Criminal Division, at No. 98-1470. J UD ~MENT oN CONS~t~tA~-70N ~F, it is now here ordered and adjudged by this Court that the judgment of the Court of Common Pleas of CUMBERLAND County be, and the same is hereby AFFTr~.D. Dated: August 18, 1999 BY THE COURT: ]. S55021/99 COMMONWEALTH OF PENNSYLVANIA, Appellee V. MARK ALLAN YOHE, Appellant IN THE SUPERIOR COURT OF PEN NSYLVANIA No. 109 MDA 99 Appeal from the Judgment of Sentence entered December 29, 1998 in the Court of Common Pleas of Cumberland County, Criminal Division, at No. 98-1470. BEFORE: DEL SOLE, ORIE MELVIN, and TAMILIA, .1]. MEMORANDUM: I= ! L E 13 AU0 1 8 199§ The Appellant, Mark Allan Yohe, appeals from the judgment of sentence entered in the Court of Common Pleas of Cumberland County following his conviction of driving while license suspended or revoked, related to driving under the influence of alcohol, and driving under the influence of alcohol,z The Appellant challenges whether the trial court failed to suppress all evidence arising from the illegal stop of his vehicle. For the reasons that follow, we affirm. The facts and procedural history may be summarized as follows. On March 15, 1998, at approximately 5:00 a.m., Officers William David Miller and Jeffrey Kurtz of the Carlisle Borough Police Department observed the Appellant's vehicle drive past Officer Kurtz's traffic stop approximately five times over a period of five minutes. Officer Miller then viewed the Appellant z 75 Pa.C.S.A. §§ 1543(b) and 3731(a)(1) respectively. J. S55021/9S park his vehicle in a parking space behind a housing project and turn off his headlights. Officer Miller proceeded to travel in his marked police vehicle toward the Appellant's vehicle in an attempt to see if the Appellant was lost or needed directions. Officer Miller also intended on advising the Appellant of Carlisle Borough's cruising ordinance.2 Before Officer Miller made contact, the Appellant exited his vehicle. and asked him if he needed problem.3 Officer Miller then approached the Appellant any help, directions or had some kind of In response, the Appellant became irate and began using profane language. At this time, Officer Miller detected a strong odor of alcohol on the Appellant's person. The Appellant also exhibited other signs of intoxication such as slurred speech and difficulty standing. Thereafter, Officer Miller called for back up. Officer Kurtz arrived at the scene and requested the Appellant perform field sobriety tests, which he failed. The Appellant was arrested and charged with driving while operating privilege is suspended or revoked, DUI related and driving under the influence of alcohol. Prior to trial on November 24, 1998, the Appellant moved to suppress the evidence 2 According to the trial court's opinion pursuant to 1925(a), the cruising ordinance prohibits driving a motor vehicle in a street past a traffic control point designated by a police officer in a designated area three or more times within any two hour period from 9:30 p.m. and 4:00 a.m. 3 Contrary to the trial court's finding in its opinion pursuant to 1925(a), we do not find the record supports that Officer Miller informed the Appellant of the cruising ordinance. -2- J. S55021/99 contending the stop was illegal. The suppression court denied this motion finding there was no illegal stop. The case proceeded to a non-jury trial, and the Appellant was convicted of all charges. On December 29, 1998, the Appellant was sentenced on the driving while operating privilege is suspended or revoked, DUI related count to a term of imprisonment of ninety (90) days and a $1,000 fine. The Appellant was also sentenced on the driving under the influence of alcohol count to a consecutive term of imprisonment of thirty (30) days to twenty (20) months and a $300 fine. This appeal followed. The Appellant presents one question for our review. He challenges whether the trial court erred in failing to suppress the evidence which emanated from the illegal stop of his vehicle. Specifically, he argues the stop was illegal because Officer Miller did not witness any erratic driving and the Appellant was not in violation of the cruising ordinance. Our standard of review of a suppression court ruling is well settled. When we review the ruling of a suppression court, we must determine whether its factual findings are supported by the record. Where the defendant challenges an adverse ruling of the suppression court, we will consider only the evidence for the prosecution and whatever evidence for the defense which is uncontradicted on the record as a whole; if there is support on the record, we are bound by the facts as found by the suppression court, and we may reverse that court only if the legal conclusions drawn from these facts are erroneous. Commonwealth v. D'Amato, 514 Pa. 471, 482, 526 A.2d 300 (1987). Moreover, even if the suppression court did err in its legal conclusions, the reviewing court may nevertheless affirm its decision where there are other legitimate grounds for admissibility of the -3- J. S55021/99 challenged evidence. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435, 438 n.5 (1975)). Commonwealth v. Roman, 714 A.2d 440, 442 (Pa. Super. 1998), appeal denied, Pa. __, 729 A.2d 1128 (1998) (citing Commonwealth v. Vasquez, 703 A.2d 25, 30 (Pa. Super. 1997). To determine the lawfulness of the police conduct in this case, it is necessary to establish the nature of the contact between Officer Hiller and the Appellant. Encounters with police may be classified as mere encounters, investigative detentions and formal arrests. Commonwealth v. Ellis, 549 A.2d 1323, 1331 (Pa. Super. 1988), appeal denied, 522 Pa. 601, 562 A.2d 824 (1989). A citizen is entitled to constitutional guarantees under each v. Holt, 711 A.2d 1011, 1016 (Pa. Super. situation. Commonwealth 1997). Police may engage in a mere encounter absent any suspicion of criminal activity, and the citizen is not required to stop or to respond. If the police action becomes too intrusive, a mere encounter may escalate into an investigatory stop or a seizure. If the interaction rises to the level of an investigative detention, the police must possess reasonable suspicion that criminal activity is afoot, and the citizen is subjected to a stop and a period of detention. Probable cause must support a custodial interrogation or an arrest. Commonwealth v. Boswell, 554 Pa. 275, 284, 721 A.2d 336, 341 (1998). In the instant case, the trial court found the nature of the contact between Officer Hiller and the Appellant was nothing more than a mere encounter. "The term mere encounter refers to certain non-coercive -4- J. S55021/99 interactions with the police that do not rise to the level of a seizure of the person under the fourth amendment." Commonwealth v. Peters, 642 A.2d 1126, 1129 (Pa. Super. 1994), appeal denied, 538 Pa. 668, 649 A.2d 670 (1994) (citing Commonwealth v. Brown, 565 A.2d 177 (Pa. Super. 1989)). An example of a mere encounter occurs when the police simply approach a person on a public street in order to make an inquiry. Id. The standard to be applied in determining what amount of force escalates a mere encounter into an investigative detention, is whether, under all the circumstances surrounding the incident at issue, a reasonable person would believe he was free to leave. Commonwealth v. Smith, 1999 PA Super 96, 13. In the instant case, Officer Miller did not initiate a stop. Officer Miller did not pull the Appellant over for a traffic violation, put on his lights or use his siren to stop the Appellant's vehicle. Instead, believing the Appellant may have been lost or in need of directions, Officer Miller proceeded toward the Appellant's parked vehicle. When Officer Miller approached the Appellant, who at that time had already exited his vehicle, he simply inquired whether the appellant needed assistance. Based upon these facts of record, we agree with the trial court that the initial encounter between Appellant and Officer IVliller constituted a mere encounter. Therefore, denial of the Appellant's suppression motion was proper. J. S55021/99 In addition, we find no evidence in the record to supPort the contention that Officer Miller "stopped" the Appellant's vehicle for a violation of the cruising ordinance. The Appellant's vehicle was already parked when Officer Miller proceeded in the Appellant's direction. Moreover, at no time did Officer Miller advise the Appellant of any possible violation of the cruising ordinance or issue a citation for a violation thereof. Officer Miller only testified that after viewing the Appellant's conduct, he intended, among other things, to inform him of the ordinance. Based upon the circumstances surrounding Officer Miller's contact with the Appellant, we find the Appellant's argument meritless. Judgment of Sentence affirmed -6-