Loading...
HomeMy WebLinkAbout92-107 CriminalCOMMONWEALTH IN THE COURT OF CO7N PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 107 CRIMINAL 1992 V. CHARGE: APPEAL FROM SUMMARY: • DRIVING UNDER SUSPENSION • (DUI RELATED) ROGER WAYNE ELLIS AFFIANT: PTL. TODD 3RICKER N RE: DEFENDANT'R UnCT- ORDER OF COURT AND NOW, this GA 'day of June, 1992, upon careful consideration of Defendant's Post -Trial Motion in Arrest of Judgment, and of the briefs and oral arguments presented in the matter, the Defendant's Motion is DENIED, EL pre -sentence investigation report is ordered, and the Defendant is directed to appear for sentence at the call of the District At orney. BY THE COURT, I Allison Taylor, Esq. Assistant District Attorney Ron Turo, Esq. Assistant Public Defender Probation Office :rc J. COMMONWEALTH V. ROGER WAYNE ELLIS Oler, J. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, P NNSYLVANIA 107 CRIMINAL 1992 CHARGE: APPEAL FROM SUMMARY: DRIVING UNDER SUSPENSION (DUI RELATED) AFFIANT: PTL. TODD BRICKER IG pnCm- OPINION AND ORDER OF COURT At issue in the present case is whether Defenda is post -trial motion in arrest of judgment following the Court's verdict of guilty' on a charge of driving under suspension (DUI related)' should be granted. The motion is based upon (1) an alleged insufficiency of the evidence to show that the Defendant was driving at the precise moment stated on the citation - 2:29 a.m. -, it being Defendant's premise that no variance in th proof in this regard was permissible;' (2) an alleged insufficiency of the evidence, in any event, to show that the Defendant was driving at any time; and (3) an alleged inadmissibility of evid a lack of "probable cause to stop, question, search defendant" or "reasonable suspicion that crimina ' Defendant's non -jury trial on appeal from si on March 17, 1992. ' Act of June 17, 1976, P.L. 162, §l, as amend §1543(b). 3 It does not appear that the defendant': augmented by a bill of particulars having been received. e because of and seize the activity was was held , 75 Pa. C.S. position was requested or 107 Criminal 1992 afoot. i4 On a defendant's post -trial motion in a cri incl case, the sufficiency of the evidence must be viewed in the light most favorable to the Commonwealth, as the verdict winner, drawing all proper inferences from the evidence in such light, and determining whether the finder of fact could reasonably have found that all the elements of the offense were established beyond a reasonable doubt.' Moreover, it is the rule that "[a] determination [as to the credibility of witnesses] is within the sole province of the trier of fact. ,6 Accordingly, the facts of the case may be stated as follows: On September 30, 1991, shortly before 2:30 a.m., Upper Allen Township Police Officer Todd Bricker, while on routine vehicle patrol, observed a green Dodge Dart parked on the right berm of Route 15 near the Country Market nursery with thelengine running, 4 Defendant's Brief in Support of Post -Trial Motions], at 9, 11. The matter of suppression appears to be raised for the first time post -trial. The general provisions of Pennsylvania's criminal rules are frequently held applicable to summary cases on appeal in the court of common pleas. See Commonwealth v. Koch, 288 Pa. Super. 290, 295, 431 A.2d 1052, 1054 (1981). In this regard, it would seem to be appropriate that suppression issues be addressed before rather than after trial. In addition, it is not good practice for a court to grant a motion in arrest of judgment on a diminished record. See Commonwealth v. Yoder, 236 Pa. Super. 538, 344 A.2d 589 (1975). ' Commonwealth v. Edwards, 521 Pa. 134, 143, 555 A.2d 818, 823 (1989). 6 Commonwealth v. Jackson, 506 Pa. 469, 475, 485 A.2d 1102, 1105 (1984). 2 107 Criminal 1992 the lights off, and an occupant in the driver's se t.' Given the late hour, Officer Bricker pulled behind the vehicle, approached the driver's side window, and noticed that the occu ant was either asleep or passed out -8 After an unsuccessful attempt to awaken the driver, Officer Bricker called for a back-up unit in the event the occupant was suffering from a medical problem or was intoxicated.' Corporal David Spotts of the Upper Allen Township Police Department responded, and together the two officers attempted, unsuccessfully, to awaken the Defendant by knocking on the windows and shouting.'o Officer Bricker then opened the driver's door, turned the radio and ignition off, and shook the Defendant to awaken him." When the Defendant woke up, the following excha ge took place: Officer Bricker "asked him if he was okay first; and he said, 'yes, I'm just tired.' [The officer said, 'W]ell, what are you doing parked here?['] He said, 'I was driving. I got tired. I was running out of gas, so I pulled off the road.ii12 ' Trial Transcript, March 17, 1992, N.T. 4-5 (hereinafter referred to as N.T. ). 8 N.T. 5. It should also be noted that Officer Bricker had passed the Country Market nursery approximately 15-20 minutes earlier and the Dodge Dart was not parked on the side of Route 15. There was also testimony indicating the absence of other individuals at the scene of the parked vehicle. N.T. 18, 30. ' N.T. 5. to N.T. 6, 17. 11 N.T. 6. 12 N.T. 6. 3 107 Criminal 1992 As the Defendant was talking, Officer Bricker on his breath and asked him to step out of the car sobriety test.13 Based upon the results of the test, Officer Bricker decided that the Defe sufficiently under the influence at that timely arrest for driving under the ' influence, and asked his operator's license. 15 When the Defendant could) license, Officer Bricker ran the Defendant's name through the PennDot system and was informed that smelled alcohol to take a field field sobriety Zdant was not to warrant an him to produce not produce his id date of birth he Defendant's license was under suspension.` Officer Bricker informed the Defendant that he would be filing a driving under suspension charge once a certif Defendant's driving record was received and his li was confirmed.17 The Defendant was then transportation from the scene by the officer." a certified copy of the Defendant's driving record, 13 N.T. 7. copy of the ense suspension provided with kfter receiving which confirmed 14 Earlier in the evening, the officer h d observed the Defendant in an intoxicated state at a party to w ich the police had been called. N.T. 8-9. 15 N.T. 7. 16 N.T. 7. 17 N.T. 8, 15-16. At no time during this ei Defendant state that any other party had been driv nor did he mention that there had been any other vehicle. N.T. 18. 1s N.T. 8. 4 nter did the the vehicle, pants in the 107 Criminal 1992 the suspension, Officer Bricker filed a citation against the Defendant for violating 75 Pa. C.S. §1543(b),' driving under suspension, DUI related.19 Upon receipt of the citation, the Defendant's wife, Loretta Ellis, called Officer Bricker and claimed that sue had been, in fact, the driver of the Dodge Dart on the morning of September 30, 1991.20 Her testimony to this effect, however, did not persuade the Court that her husband had not driven to the sc�ne where he was found by police.21 With respect to Defendant's argument in favor �f his motion in arrest of judgment that the evidence was insuffici4nt to support a conviction because it did not show that he was driving at the 19 The certified copy of the defendant's driving record indicated that his operating privileges were su pended for one year, effective August 28, 1991. Official notice ol the suspension was mailed to the Defendant on August 12, 1991 andthe Department of Transportation received the Defendant's licens on August 28, 1991 (N.T. 10). Additionally, the time noted on the citation was 2:29 a.m. , which is the time the Defendant informed 'Officer Bricker that he was driving. N.T. 6. 20 N.T. 13-14. 21 At trial, Ms. Ellis testified that she w s driving home from a party at approximately 1:00 a.m. with her husband, who was drunk and asleep in the front seat, when he woke pp and demanded that she return to the party. When she refused, a brief argument ensued, after which she left the defendant in th it vehicle and walked to a certain gas station, where she called her sister-in-law to come and pick her up. After her sister-in-law'arrived, Mrs. Ellis testified, they returned to her vehicle to pick up her husband and found that he was not there. N.T. 0-29. In her statement to Officer Bricker, Ms. Ellis had told im friends who were following her and the Defendant had given her, transportation home following the argument. N.T. 31. 61 107 Criminal 1992 precise moment stated on the citation, 2:29 a.m.,f '2 it should be noted that, in general, time is not of the essenc4 in a criminal prosecution. Commonwealth v. Boyer, 216 Pa. Super 286, 264 A.2d 173 (1970); Commonwealth v. Williams, 187 Pa. Super{'. 295, 144 A.2d 634 (1958). The Court has found no authority for the proposition that a defendant must be discharged in a driving u�der suspension case where a variance of several minute S23 as to time of driving between allegata and probata has occurred. With respect to Defendant's argument in favor Of his motion in arrest of judgment that the evidence was insufficie�pt to support a conviction because it did not show that he was driving at any time, the Court is likewise unable to agree with his position. In relevant part, the Pennsylvania Vehicle Code provision implicated in this proceeding provides as follows: Any person who drives a motor vehic a on any highway or trafficway of this Commonw alth at a time when their operating privile a is suspended ... for a violation of section 3731 (relating to driving under the influen a of alcohol or controlled substance) ... s all, upon conviction, be guilty of a s ary offense ....24 To procure a conviction under 51543(b), the Commonwealth must 22 This was the time at which the Defendant admitted to Officer Bricker that he had been driving. N.T. 12ll 23 See note 8 supra and accompanying text. 24 Act of June 17, 1976, P.L. 162, S1, as amen ,ed, 75 Pa. C.S. �1543(b) (1991 Supp.). 11 107 Criminal 1992 prove, inter alia, that the accused was driving. Commonwealth v. Cunningham, 380 Pa. Super. 177, 182, 551 A.2d 288,1290 (1988). "The law in Pennsylvania has consistently recognized that circumstantial evidence may, without more, be the basis of a conviction so long as the inferences drawn therefrom prove the facts or fact in question beyond a reasonable doubt." Commonwealth v. Treftz, 465 Pa. 614, 627, 351 A.2d 265, 27 (1976). In Commonwealth v. Brown, 268 Pa. Super. 206, 211, 407 .2d 1318, 1320 (1979), our Superior Court held that, "[i]n order to prove that a defendant charged with a violation of section 3731 of the Vehicle Code, relating to driving under the influence] rove' a motor vehicle, evidence must be adduced that the vehicle was (at the time in question), in fact, in motion."" Brown, however, does not "require direct evidence of motion Commonwealth v. Matsinger, 288 Pa. Super. 271, 276, 431 A.2d 1043, 1045 (1981). In Matsinger, the Superior Court held that "a finder of fact may ... infer that a defendant's car had been in motion" based on the 25 It should be noted that §3731 of the Vehicle Code presently states that "[a] person shall not drive, operate or be in actual physical control ...."; whereas, when Brown was decided, §3731(a)(1) stated, "[a] person shall not drive any vehicle ...." Thus, the holding of Brown is of pertinence to the present case. 7 107 Criminal 1992 circumstantial evidence offered at trial. Id. at �76, 431 A.2d at 1045.26 The Defendant argues that Matsinger is distinguishable from the present case based upon the fact that the Matsinger vehicle was stopped on a highway blocking traffic, whereas here the Defendant's car was legally parked on the side of the road .2' The Defendant argues that the facts in the present case are more analogous to those found in Commonwealth v. Heinhold, 26 D. & C.3d 531 (Cumberland Co. 1983). In Heinhold the defendant Was found guilty of driving under the influence after he was found in his car parked on the side of the road with the engine running, li hts on, and the transmission in gear. Id. at 532-533. In granting the defendant's motion in arrest of judgment, Judge Hoffer of this Court held that the circumstantial evidence produced by the Commonwealth was insufficient to prove beyond a reasonable doubt that the defendant's vehicle had been in motion. Id. at 535.28 26 The circumstantial evidence in Matsinger included testimony that the defendant's van was parked in the oncoming lane of traffic with its engine running, transmission in gear, an 'headlights on. Commonwealth v. Matsinger, 288 Pa. Super. 271, 216-77, 431 A.2d 1043, 1044 (1981). 27 Defendant's Brief in Support of Post -Trial [Motion], at 7. 28 The circumstantial evidence proffered in Heinhold included testimony that the defendant's car was legally parked on the side of the road, that a pewter mug containing beer w s found on the floor of the vehicle, that the arresting officer 'had passed the location where the defendant's vehicle was parked three hours before and the vehicle was not there. Commonwealth �v. Heinhold, 26 D. & C.3d 531 (Cumberland Co. 1983). 107 Criminal 1992 The facts in the case sub judice are easily distinguished from those in Heinhold. First, Officer Bricker passed the Country Market nursery shortly after 2:00 a.m. and the Defendant's vehicle was not parked there; the vehicle was parked in that location fifteen to twenty minutes later. Second, the defen ant in Heinhold never admitted to driving the vehicle; the d fendant in the instant case told Officer Bricker that he had, in fact, been driving the vehicle. Therefore, the reasoning of Heinhold is not applicable to the present case. The evidence offered by the Commonwealth in this case included: (1) Officer Bricker's testimony that the defendant's vehicle was not parked on the berm of Route 15 shortly after 2:00 a.m. but was there fifteen or twenty minutes latex; (2) testimony that the vehicle was parked with the engine running, the lights off, and the defendant passed out in the driver's seat; (3) testimony that the defendant admitted upon being awakened to having driven the vehicle; and (4) testimony indicating the absence of another individual at the scene. On this evidence, the finder of fact could, and did, permissibly infer beyond a r easonable doubt that the Defendant's vehicle had been in motion, riven by him to the scene, in a violation of Section 1543(b) of the Vehicle Code. With respect to Defendant's argument, in favor of his motion in arrest of judgment, that the conviction herein was based upon E 107 Criminal 1992 suppressible evidence,29 several considerations militate against granting relief.30 On the merits, the question presented is whether evidence utilized at the trial was obtained in violation of the Defendant's right under the fourth amendment to the federal constitution to be free from unreasonable searches and seizures. It has been stated that "[t]here is nothing in the [United States] Constitution which prevents a policeman Erom. addressing questions to anyone on the streets." Terry v. Oh'o, 392 U.S. 1, 34, 88 S. Ct. 1868, 1886, 20 L. Ed. 2d 889 (19 8) (White, J., concurring). However, "[t]o stop or restrain a citizen, ... the officer must be able to 'point to specific and ar iculable facts which, taken together with rational inferences fr m those facts, reasonably warrant that intrusion."' Commonwealth . Williams, 287 Pa. Super. 19, 23, 429 A.2d 698, 700 (1981), quo ing Terry, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906. An individual is "stopped" if, under all the circumstances, "a reasonable man, innocent of any crime, would have thought [he was being restrained] had he been in the defendant's shoes." Commonwealth v. Jones, 474 Pa. 364, 372-373, 378 A.2d 835, 840 (1977) (citation and footnote omitted), cert. denied, 435 U.S. 947, 98 S. Ct. 15'3, 55 L. Ed. 2d 29 The defendant argues that any evidence obtained as a result of the encounter between himself and Officer Bicker must be suppressed and that he should be discharged because the police lacked probable cause or a reasonable suspicion that criminal activity was afoot. Defendant Brief in Support of Post -Trial [Motion], at 9, 11. 30 See note 4 supra and accompanying text. 10 107 Criminal 1992 546 (1978). "[T]he line of demarcation between a stop and la mere approach by a police officer cannot be precisely drawn; h wever, factors such as whether the officer makes a show of authority or exercises force, the officer's demeanor and manner of expression, the location, and the context of any interrogatories are relevant to the determination." Commonwealth v. Williams, 298 Pa. Super. 466, 470, 444 A.2d 1278, 1279 (1982). "In appropriate circumstances, a police officer is free to approach a citizen and address questions to him." Id. at 469, 444 A.2d at 1279. Furthermore, the right to operate a motor vehicle on the roadways of the Commonwealth is a privilege granted subject to certain conditions 31 one of which is a requirement that the operator produce his license when requested to do so under proper circumstances by a police officer.3z Stated another way, it has been said that "[e]ncounters between the public and the police that do not i volve a formal arrest may be characterized as mere encounters, non-custodial 31 Commonwealth v. Halteman, 192 Pa. Super. 37, 384, 162 A.2d 251, 255 (1960). 32 Section 1511(a) of the Vehicle Code provides in relevant part, "Every licensee shall possess a driver's license issued to the licensee at all times when driving a motor vehicle and shall exhibit the license upon demand by a police officer Act of June 17, 1976, P.L. 162, §1, 75 Pa. C.S. §1511(a). Thus, a police officer can request an individual's driver'sl'cense without probable cause or a reasonable suspicion that crimi lal activity was afoot. 11 107 Criminal 1992 detentions, and custodial detentions. Commonwealth v. Ellis, 379 Pa. Super. 337, 353, 549 A.2d 1323, 1331 (1988). The term 'mere encounter' refers to certain non -coercive intera tions with the police that do not rise to the level of a seizure of the person under the fourth amendment. For example, a 'mere encounter' occurs if the police simply approach a person on a public street in order to make inquiries. See Commonwealth v. Hall, 475 Pa. 482, 488, 380 A.2d 1238, 1241 (1977)." Commonwealth v. Brown, 388 Pa. Super. 187, 189-90, 565 A.2d 177, 178 (1989); see Commonwealth v. Bennett, Pa. Super. A.2d (No. 1120 Pittsburgh 1990) (March 3, 1992). An officer's approach of a parked vehicle under circumstances justifying concern has been held by, this Court to initiate in a "mere encounter." Commonwealth v. Platt, No. 1812 Criminal 1991 (April 3, 1992) (Cumberland Co.). Clearly under the factual circumstances presented herein, Officer Bricker did not stop the Defendant's vehic e. First, the Defendant's car was parked with the Defendant asleep or comatose in the driver's seat. Second, Officer Bricker did not make a show of authority or exert excessive force in approaching or conversing with the Defendant. Finally, the officer's demeanor was friendly and showed concern for the Defendant's well-being. Given the late hour, the location of the Defen ant's vehicle, the fact that the Defendant was either asleep or unconscious in the driver's seat, and the fact that the vehicle had not been on the berm of Route 15 fifteen to twenty minutes earlier, it was entirely 12 107 Criminal 1992 appropriate for Officer Bricker to approach the Def ndant's vehicle to determine if he needed assistance. Once the Defendant was awakened by Officers Bricker and Spotts, he admit ed that he had been driving the vehicle before the officers focused their attention on his sobriety. Moreover, regardless of the Defendant's performance in the field sobriety test, it was entirely appropriate for Officer Bricker, without probable cause, to ask the Defendant to produce his operator's license under the circumstances. When the Defendant could not do so and it was deterinined that his license was under suspension, Officer Bricker properly filed a citation against the Defendant for violating §1543(b) of the Vehicle Code. The Court is unable to find that evidence utilized in the Defendant's trial was obtained by the ommonwealth in violation of his rights under the fourth amendment. For these reasons, the Defendant's Post -Trial Motion in Arrest of Judgment must be denied. ORDER OF COURT AND NOW, this W� day of June, 1992, upon careful consideration of Defendant's Post -Trial Motion in Arrest of Judgment, and of the briefs and oral arguments p'esented in the matter, the Defendant's Motion is DENIED, & pre -sentence investigation report is ordered, and the Defendant is directed to appear for sentence at the call of the District At orney. BY THE COURT, J. 13 107 Criminal 1992 Allison Taylor, Esq. Assistant District Attorney Ron Turo, Esq. Assistant Public Defender Probation Office :rc 14 J. A13002/93 COMMONWEALTH OF PENNSYLVANIA V. ROGER WAYNE ELLIS, IN THE SUPERIOR COURT OF PEN148YLVANIA Appellant ) No. 499 Harrisburg, 1992 Appeal from the Judgment of Sentence Entered July 28, 1992, Docketed July 29, 199 .2, in the Court of Common Pleas of Cumberland County, Criminal Division, at No. 107, Criminal. BEFORE: CIRILLO, POPOVICH and HESTE , JJ. ift 1 L E D AUG MEMORANDUM: 4 1993 Roger Wayne Ellis appeals from the judgment- of sentence imposed subsequent to a nonjury trial in which he was found guilty of the summary offense of driving a motor vehicle while his operator's privilege was suspended. See 75 a.C.S. § 1543(b). Post -trial motions were filed and denied before the sentence of ninety days imprisonment plus one thousand dollars in fines was imposed. Appellant maintains that defects in the citation and the introduction at trial of unlawfully obtained Ilevidence mandate a reversal of the trial court's decision. We affl'rm. The trial transcript reveals the following facts and evidence. In the early morning hours of S ptember 30, 1991, during his routine patrol of Route 15 in Mechanicsburg, Patrolman Todd Bricker of the Upper Allen Township Po ice Department in Cumberland County, noticed a green Dodge Dart with its engine running, radio blaring, and lights extinguished. It was parked along the berm of the road near the Country rket Nursery. The officer had passed the location approximately twenty minutes AUG - 51993 J. A13002/93 earlier, and the car had not been there. Clllncerned as to the welfare of the occupant in the driver's seat, he decided to investigate. The officer made multiple attempts to arouse appellant. Officer Bricker called for a back-up unit in the event the individual was suffering from medical problems or was intoxicated. Ultimately, Officer Bricker and Corporal David Spotts opened the car door and shook appellant in order to wake him. The officers testified that when questioned about his health, appellant responded, "I'm just ired." Notes of Testimony, ("N.T."), 3/17/92, at 6. Officer Bricker then asked appellant why he was parked on the side of t e road. Appellant answered, "I was driving. I got tired. I was running out of gas, so I pulled off the road." Id. At trial Corporal Spotts confirmed that appellant admitted that he had driven the vehicle. Officer Bricker testified that as he spoke with appellant, he detected an odor of alcohol on appellant's breath and asked him to submit to a field sobriety test. The officer concluded that appellant was not sufficiently under the influence of alcohol to warrant an arrest for driving under the in�luence of alcohol ("DUI"). Next, Officer Bricker asked appellan� for his driver's license. Appellant told the officer that he did not have one. Officer Bricker asked appellant for his name and date of birth, ran the information through the PennDot syste and found that appellant's license was under suspension. -2- J. A13002/93 The officer explained to appellant that he would cite him for driving while his operator's license was under suspension ("DUS"). The patrolman then offered to drive appellant to the destination of his choice. Appellant told the officer that he would like to return to a party at the Belle Terre Apartments, in Upper Allen Township, which he had attended earlier. After receiving a certified copy of appellant's driving record and confirming the license suspension, Officer Bricker filed a citation against appellant for violating 75 Pa.C.S. § 1543(b), D S, DUI related. • Upon her receipt of the citation, Mrs. Loretta Ellis, appellant's wife, telephoned Officer Bricker an informed him that she had driven the green Dodge Dart on the morning of September 30, 1991. Appellant pled not guilty to the DUS charge. A summary hearing was held on March 17, 1992. A certified copy of a PennDot record was introduced into evidence proving that appellant's license was suspended on June 30, 1990, for a violation of section 3731, ,driving under the influence of alcohol. The record revealed hat appellant was convicted on January 16, 1991, and his licens was suspended for one year, effective August 28, 1991. The record revealed that official notice was mailed to appellant on August 12, 1991. Appellant's license was received by PennDot on August 28, 1991. In appellant's defense, his wife, Loretta, testified that she and her husband left a party, at the Belle Terre apartments at approximately 1:00 a.m. She testified that they left the party -3- J. A13002/93 because her husband was so drunk that hews unable to talk. Friends helped appellant into the passenger si Ie of the car, while she entered the driver's side. Mrs. Ellis testified that after approximately five or six miles, appellant awoke and became belligerent. Mrs. Ellis told the court that she pulled the car off onto the side of the road, but left the engine running because the car's battery was poor, and they were low on gas. She walked to a nearby Atlantic Mart and telephoned appellant's sister. Mrs. Ellis thought that perhaps appellant's sister could calm him. When they returned to the car, appellant was gone. The two women assumed that a friend had stopped and given appellant a ride home. However, when they reached home, appellant$ was not there. Appellant telephoned his sister at a later point and asked her to pick him up from the Belle Terre Apartments. Mrs. Ellis testified that when she returned to the automobile, it was in the same position in which she had parked it before leaving to telephone her sister-in-law. On cross- examination, Mrs. Ellis testified that she was unsure of the exact time she and her husband left the party. 4kewise, she was uncertain of the time that she left the carr to telephone her sister-in-law. Based on the above testimony, the court cncluded that while it believed Mrs. Ellis' testimony with regard t the fact that she drove the car away from the party at approxima ely 1:00 a.m., it reasoned that there was a time span of about on hour wherein she -4- J. A13002/93 had no idea what appellant was doing. The court credited appellant's admission and concluded that appellant likely drove the car in his wife's absence. Therefore, the court found appellant guilty of driving an automobile with a suspended license (DUS). Post -trial motions were filed and d nied. Judgment of sentence was imposed, and this appeal followed. Appellant first argues that the stop and arrest were made without probable cause because there was nothing to support "a reasonable suspicion that criminal activity was afoot." Appellant's brief at 9. Appellant maintains that because the officer lacked probable cause to stop and que'tion him, the stop was unwarranted and illegal.l Therefore, hE argues that any evidence gleaned from his encounter with Patrolman Bricker should have been suppressed by the lower court. The record -reveals that appellant f rst raised this suppression issue in his post -trial motions. I'sues regarding the suppression of evidence are matters which should be raised before trial. See Commonwealth v Throckmorton, 241 Pa.Super. 62, 359 A.2d 444 (1976), (If a defendant fails to raise suppression issues prior to trial, he may not litigate them for first time at trial, in post -trial motions, or on appeal. Pa.R.Cri . P.., Rules 323, 1123.) However, even if we determined that appellant's argument 1 Appellant also argues that the "search and seizure" were unlawful. However, since the record does not support the assertion that a "search" or a "seizure" occurred, we will not address that argument. -5- J. A13002/93 was preserved, we would find it meritless. Appellant states that "there was no testimony presented by the Con1monwealth that any criminal activity was afoot nor that the officer had any belief that (appellant] was armed and dangerous t allow a pat -down search under Terrv." In support, he relies u on Commonwealth v. Whitmeyer, Pa.Super., 609 A.2d 809 1992). Appellant's brief at 10. This argument is not supported bl the facts in this case. Specifically, the record refutes app llant's contention that he was stopped or searched by Patrolman Bricker. Officer Bricker's approach of the parked vehicle showed concern for the welfare of the unconscious occupant. When the officer asked appellant about his health, his demeanor was not one of force or authority. Therefore, there is no need for teEltimony from either officer that they had a "reasonable suspicion that criminal activity was afoot." This situation is a classic example of a mere encounter. We have held that chance ncounters between police officers and members of the public are viewed as non- custodial detentions which do not rise to the level of a seizure of the person and are not subject to the protections afforded by the fourth amendment. Commonwealth v Ellis, 79 Pa.Super. 337, 549 A,2d 1323 (1988). Appellant argues that this case parallels Commonwealth v. DeWitt, Pa.Super. , 608 A.2d 1030 (19D2) . In DeWitt, a police officer conducted an investigative stop of a parked car in a church lot. As the officer approached the tehicle, it pulled J. A13002/93 away. The officer then stopped the vehicle, searched it, and seized drugs and drug paraphernalia. The issue in DeWitt was the lawfulness of the stop. Although the officer, therein testified that he was concerned that the vehicle might be disabled, his theory was dispelled as the car pulled away. Since there was no evidence of criminal activity, we upheld the suppression court's determination that the stop was illegal and the evidence could not be admitted at trial. Instantly, we reiterate that we have no stop. Therefore, appellants reliance upon DeWitt is misplaced. Next appellant argues that the evidence vtas insufficient to support his conviction because the Commonwealth failed to prove that he drove his vehicle on September 30, 1991, at 2:29 a.m. Our standard of review regarding sufficiency claims is well-settled. We must determine whether, viewing all the evidence at trial, as well as all reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth, the jury could have found that each element. of the offense wasproven beyond a reasonab e doubt. Both direct and circumstantial eviden a can be considered equally when assess: ''ng the sufficiency of the evidence. Commonteal th v. Hughes, 521 Pa. 423, 429-31, 555 A.2d 1264, 1267 (1989); Commonwealth v. 0 'n, 373 Pa.Super. 116, 540 A.2d 549 (1988) ( in banc) . Commonwealth v French, 396 Pa.Super 436, 440, 78 A.2d 1292, 1294 (1990) . - In relevant part, 75 Pa.C.S. § 1543(b) pro4ides: Any person who drives a motor vehicle on any highway or trafficway of this Common ealth at a time when their operating privilege is suspended . . . for a violation of section 3731 (relating to driving under infl'ence of -7- J. A13002/93 alcohol or controlled substance) . shall, upon conviction, be guilty of a summary offense. . In order to obtain a conviction under § 1543(b), the Commonwealth must prove that the license oE the accused was suspended, and that the accused was driving while his license was suspended. Appellant does not challenge the fa t that his license was suspended. Therefore, his argument consist of a weak attempt to refute the evidence which supports the trial court's finding of guilt. Appellant claims that the citation is invalid because it denotes the time of the offense as 2:29 a.m. Appellant argues that at 2:29 a.m., the vehicle was park d. Therefore, he maintains that he cannot be cited for driv ng at that time. Officer Bricker explained that the time noted on the citation indicated the time at which appellant admitted to driving. However, appellant provides us with no support for his contention that an individual must be discharged from a PUS charge because the citation reflects a minute variance in the �xact time at which the offense occurred. Likewise, appellant argues that the Common'ealth has no proof that he drove the automobile at any time that evening. Clearly, appellant's admission was proof. It is our opinion that the record in this case supports the conclusion of the hearing court. We believe that the hearing court's thorough o inion with regard to this issue dispenses with appellant's eritless claims. -8- J. A13002/93 Therefore in reliance upon that opinion, we ffirm appellant's conviction. Judgment of sentence affirmed. CIRILLO, J., files a Dissenting Memorandum. DATED: August 4, 1993 JUDGMENT ENTERED i puty Prothonotary it -9- J. A13002/93 COMMONWEALTH OF PENNSYLVANIA IN THE SU PEN VS ROGER WAYNE ELLIS, Appellant No. 00499 IOR COURT OF LVANIA Harrisburg 1992 Appeal from the Judgment of Sent nce July 28, 1992 docketed July 29, 1 92 in the Court of Common Pleas of Cumb rland County, Criminal No. 107 Crimi al BEFORE: CIRILLO, POPOVICH and HESTER, JJ. DISSENTING MEMORANDUM BY CIRILLO, J.:''L AUG 4 I respectfully dissent. I believe that, because Ellis's admission was not properly used by the Commonwealth to establish that he was driving with a suspended license, llis's conviction should be reversed. As the majority has pointed out, in rder to obtain a conviction under 75 Pa.C.S.A. § 1543(b), the C mmonwealth must prove that, (1) the license of the accused was suspended, and (2) the accused was driving while his license was uspended. While it is not disputed that Ellis's license was suspeded, I question the majority's sole reliance on Corporal Spott's t stimony that Ellis stated that he had been driving for purposes o sustaining Ellis's conviction. A criminal conviction may not stand rerely on the out of court confession of the accused; rather, indep4ndent evidence, corpus delicti, must be presented to the fact finder. Common- wealth v. Edwards, 521 Pa. 134, 555 A.2d 818 (1989), Commonwealth v. Byrd, 490 Pa. 544, 417 A.2d 173 (1980), Co onwealth v. AUG - jj�3 J. A13002/93 - 2 DiSabatino, 399 Pa. Super. 1, 581 A.2d 645 (19!0), appeal denied, 592 A.2d 1297 (Pa. 1991). The primary purpose of such a rule iE to protect against unjust convictions that may result from coercion, confusion, or mental illness, and this concern is involved i all criminal trials, including misdemeanors. Commonwealth Forman, 404 Pa. Super. 376, 590 A.2d 1282 (1991). It is highlylpossible here that the influence of alcohol, and grogginess from h wing been awakened from sleep by the officers may have pl, 4ced Ellis in a state of confusion, causing him to admit to driving. With the presence of such a possibility, as well as theCommonwealth's failure to offer any independent evidence to pr ve that Ellis was in fact driving, this court cannot rely upon Elvis's admission as proof of driving. In light of the foregoing reasons, I �ould reverse Ellis's conviction.