COMMONWEALTH of Pennsylvania, Appellant v. Christopher M. COLLINS, Appellee.
Superior Court of Pennsylvania.
Filed June 4, 2008.
Argued Feb. 21, 2008.
952 A.2d 1041
¶ 22 Mr. Stumpf‘s final claim is that the trial court erred in charging the jury on conspiracy since there was no factual basis for the charge. Specifically, Mr. Stumpf argues there is no evidence that Mr. Stumpf and others agreed to attack Mr. Nye. We find this issue to be waived.
¶ 23
¶ 24 In the case sub judice, we have reviewed the certified record, and we conclude Mr. Stumpf did not object to the trial court‘s jury instruction on conspiracy. Mr. Stumpf alleges the trial court conducted a charging conference in chambers on February 16, 2007, at which Mr. Stumpf objected to the trial court charging the jury on conspiracy. See Mr. Stumpf‘s Brief at 12; Trial Court Opinion filed 4/24/07 at 12. However, Mr. Stumpf apparently did not ensure this conference was recorded, and therefore, we have not been provided with a transcript of such. It is well-settled that this Court may only consider items which have been included in the certified record and those items which do not appear of record do not exist for appellate purposes. Growall v. Maietta, 931 A.2d 667 (Pa.Super.2007) (holding that failure by the appellant to ensure the original record certified for appeal contains sufficient information to conduct a proper review constitutes waiver of the issues sought to be examined); Keystone Technology Group, Inc. v. Kerr Group, Inc., 824 A.2d 1223 (Pa.Super.2003) (holding an appellate court is limited to considering only those facts duly certified in the record on аppeal and, for purposes of appellate review, what is not of record does not exist). That is, since Mr. Stumpf did not provide this Court with a transcription of the charging conference, or a statement in absence of a transcript pursuant to
¶ 25 Affirmed.
Karen E. Kuebler, Asst. Dist. Atty., Bellefonte, for the Com., appellant.
Parviz Ansari, Bellefonte, for appellee.
OPINION BY STEVENS, J.:
¶ 1 This is an appeal from the order entered by the Honorable Bradley P. Lunsford, Judge of the Court of Common Pleas of Centre County, Pennsylvania, granting Appelleе‘s Omnibus Pre-trial Motion to Suppress Evidence. At issue is whether a police officer‘s safety check of passengers in a vehicle parked legally, after sundown, at a roadside location constitutes a mere encounter or an investigative detention. We find that given the totality of the circumstances, there was a mere encounter. We reverse and remand for further proceedings.
¶ 2 On February 22, 2006, Trooper Joshua Walton of the Pennsylvania State Police filed a criminal complaint charging Appellee with one count of Possession of Drug Paraphernalia.1 On April 12, 2006, Appellee waived his right to a Preliminary Hearing on this charge, and on June 6, 2006, Appellee filed an Omnibus Pre-Trial Motion, Motion to Suppress. After a hearing, the motion was granted by the suppression court on July 11, 2006. The Commonwealth filed its Notice of Appeal on August 9, 2006.2 On August 11, 2006, a
¶ 3 This Court must review whether the suppression court erroneously determined Appellee‘s interaction with the Trooper was an investigative detention, unsupported by reasonable suspicion.
¶ 4 Trooper Walton, of the Pennsylvania State Police Rockview Station, testified on direct examination that he was on routine patrol on February 13, 2006, and at the time, he was with the State Police for approximately nine months. He was traveling southbound on State Route 150, at 7:00 р.m., and observed a vehicle parked at the Bald Eagle State Park overlook. Trooper Walton testified that he “always stops for vehicles parked along the roadway.” N.T. 7/11/06 at 4. His reasoning was to “stop and see if they‘re all right.” N.T. 7/11/06 at 4.
¶ 5 Trooper Walton explained that the vehicle was not moving when he first saw it, and the vehicle did not attempt to move as he approached. He further noted that he parked his car to the right of the vehicle, and his headlights were shining into the passenger compartment of the vehicle but he did not block the vehicle from leaving. Trooper Walton testified that he first spoke with the front seat passenger of the vehicle, Appellee, and the Trooper noticed a bong3 between the seats and the smell of marijuana.
¶ 6 Trooper Walton used his flashlight when he approached the passenger side of the vehicle because his body blocked the light from his patrol car‘s headlights. After the approach, Trooper Walton returned to his patrol car, turned on the in-car camera and called for backup.
¶ 7 On cross-examination, Trooper Walton testified that the vehicle was parked overlooking the lake, that is, whеre people park when they chose to park at the overlook and that he has previously seen people parked there. Trooper Walton stated on the record that his reason for approaching this vehicle was because it was too close to the street, he thought it was broken down, and he does not usually see vehicles parked at the overlook after dark. N.T. 9. Trooper Walton testified there is nothing wrong with parking at that pаrticular location after dark. Moreover, he stated the vehicle was not parked in any unusual manner, and no parking violations were present.
¶ 8 Trooper Walton testified that it did not appear to him that there was any outward sign of distress from the occupants of the vehicle and that he did not observe anything that led him to believe that there was something illegal going on at that particular time.
¶ 9 When asked if it is more common to approach the driver of the vehicle first, Trooper Walton replied that no, it was not, and that he routinely approaches the passenger side, especially during traffic stops. He stated that was his practice and that the passenger side in this case was the closest side to him. Trooper Walton testified that the car window was rolled up when he first approached the vehicle and then, simultaneously as he walked up to the vehicle, Appellee rolled down the window. The interior lights in the subjeсt car were off. When asked about the dialogue between the Trooper and the occupants, Trooper Walton stated that he walked up to the vehicle, asked if everything was okay, and in response, Appellee blurted out that the occupants had been smoking marijuana. Not until his question was answered did he discover the occupants’ activities and see the bong resting between the car seats. Trooper Walton also stated that he did not see any signs that the occupants were scrambling around trying to get away because a trooper was approaching them. Trooper Wal
In reviewing a Commonwealth appeal from a suppression order: we follow a clearly defined standard of review and consider only the evidence from the defendant‘s witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted.... The suppression court‘s findings of fact bind an appellate court if the record supports those findings. Commonwealth v. DeHart, 745 A.2d 633, 636 (Pa.Super.2000) (citing Commonwealth v. Nester, 551 Pa. 157, 709 A.2d 879, 880-81 (1998)). “[T]his Court may reverse only when the legal conclusions drawn from those facts are erroneous.” Commonwealth v. Valentin, 748 A.2d 711, 713 (Pa.Super.2000).
¶ 10 There are three categоries of police interactions which classify the level of intensity in which a police officer interacts with a citizen, and such are measured on a case by case basis. Traditionally, this Court has recognized three categories of encounters between citizens and the police. These categories include (1) a mere encounter, (2) an investigative detention, and (3) custodial detentions. The first of these, a “mere encounter” (or request for information), which need not be supported by any level of suspicion, but carries no official compulsion to stop or to respond. The second, an “investigative detention” must be supported by reasonable suspicion; it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. Finally, an arrest or “custodial detention” must be supported by probable causе. Commonwealth v. Mendenhall, 552 Pa. 484, 488, 715 A.2d 1117, 1119 (1998) (citing Commonwealth v. Polo, 563 Pa. 218, 759 A.2d 372, 375 (2000)).
¶ 11 The question of law before us is whether the initial interaction between Trooper Walton and Appellee was a mere encounter or an investigative detention. We believe the situation was a classic example of the former.5 The legal conclusions derived from the facts by the suppression court are erroneous.
To determine whether a mere encounter rises to the level of an investigatory detention, we must discern whether, as a matter of law, the police conducted a seizure of the person involved. To decide whether a seizure has occurred, a court must consider all the circumstances surrounding the encounter to determine whether the demeanor and conduct of the police would have communicated to a reasonable person that he
¶ 12 In the case sub judice, a reasonable person in Appellee‘s position would be free to terminate the encounter. The record indicates for example, that Trooper Walton parked twenty feet away from the rear of the vehicle. N.T. 7/11/06 at 15. The record does not indicate that the overhead lights where turned on in the patrol car.7 The vehicle in question was not obstructing traffic or in violation of any traffic regulations. Although people parked at this location regularly, they did not do so as frequently after dark. Thus, Trooper Walton was concerned enough to check on the condition of the vehicle and safety of its occupants. Moreover, Trooper Walton testified that no outward sign of distress emanated from the vehicle, and he did nоt observe anything that would lead him to believe that illegal activity was occurring. Further, Trooper Walton explained on cross-examination that the occupants were not scrambling around as if they were trying to get away because a state trooper was approaching them. Instead, Trooper Walton approached the vehicle requesting information, asked if “everyone was ok” and then Appellee blurted out that they were smoking marijuana. N.T. 7/11/06 at 12. Trooper Walton at that point smelled burnt marijuana and observed the bong in the vehicle.
¶ 13 “Because the level of intrusion into a person‘s liberty may change during the course of the encounter, we must carefully scrutinize the record for any evidence of such changes.” Commonwealth v. Blair, 860 A.2d 567, 572 (Pa.Super.2004). The facts do not suggest that Trooper Walton acted in a coercive manner and spoke forcefully to Appellee. Nor do the facts indicate that Trooper Walton initially had a reasonable suspicion to believe that Appellee and the occupants were committing any illegal activities. Rather, during the initial approach by Trooper Walton, facts that typify a mere encounter are present, not an investigative detention.
¶ 14 We find in the case sub judice that a reasonable person would have interpreted Trooper Walton‘s actions as an act of official assistance and not an investigative detention. Indeed, our expectаtion as a society is that a police officer‘s duty to serve and protect the community he or she patrols extends beyond enforcement of the
¶ 15 Reversed; Remanded; Jurisdiction relinquished.
¶ 16 DONOHUE, J., files a Dissenting Opinion.
DISSENTING OPINION BY DONOHUE, J.:
¶ 1 Our standard of review in cases where the Commonwealth appeals from a suppression order is to ascertain whether the record supports the factual findings of the suppression court and then to determine whether the suppression court‘s inferences and legal conclusions drawn therefrom are reasonable. Commonwealth v. Tucker, 883 A.2d 625, 629 (Pa.Super.2005). In this case, the suppression court fairly considered the testimony of Trooper Walton and reached a reasonable decision to suppress the evidence that is fully supported by the record and prior decisions of this Court. Accordingly, I dissent.
¶ 2 The majority correctly identifies the issue before us as the classification of the initial interaction between Trooper Walton and the Appellee Christopher Collins (“Collins“) as either a mere encounter or an investigative detention.8 The test for distinguishing between these two types of situations is whether “the demeanor and conduct of the police would have communicated to a reasonablе person that he or she was not free to decline the officer‘s request or otherwise terminate the encounter.” Commonwealth v. Reppert, 814 A.2d 1196, 1201-02 (Pa.Super.2002).
¶ 3 Trooper Walton testified that he had no information to suggest that there was any illegal activity occurring in the vehicle in which Collins was a passenger. N.T., 7/11/06, at 11. To the contrary, the vehicle was merely parked at a scenic overlook specifically designed for such use. N.T., 7/11/06, at 9. It was not damaged or in disrepair, and it was not parked unusually, illegally, or on a roadway. N.T., 7/11/06, at 10-11. Trooper Walton positioned his vehicle so that his headlights would shine directly into the passenger compartment of
¶ 4 Based on these facts, аnd as the suppression court found, a reasonable person in Collins’ position would not, as the majority‘s concludes, have considered himself “free to terminate the encounter.” Trooper Walton, in uniform, got out of a marked vehicle and, while shining multiple lights into the passenger compartment, began asking Collins questions. A reasonable person would not think that he/she was free to simply ignore the trooper and to instead back out of the parking space and leаve. See, e.g., Commonwealth v. Mulholland, 794 A.2d 398, 401-02 (Pa.Super.2002) (investigative detention found where officer approached the occupants of a legally parked van and, after shining the police cruiser‘s lights in the direction of the van, began asking questions); Commonwealth v. DeHart, 745 A.2d 633, 636-38 (Pa.Super.2000) (investigative detention found where troopers approached a legally stopped vehicle and began asking questions, concluding that “The overwhelming majority of lay people do not feel free to simply ignore a police officеr‘s questions and continue driving along.“).
¶ 5 The majority likewise lacks any support in the evidentiary record for its conclusion that a reasonable person “would have interpreted Trooper Walton‘s actions as an act of official assistance and not an investigative detention“. Trooper Walton freely admitted that he did not observe anything to indicate that the car in which Collins was a passenger was in any distress or disrepair, or that its occupants otherwise requirеd any assistance. N.T., 7/11/06, at 10-11. As such, the majority‘s reliance on Judge Stevens’ prior opinion in Commonwealth v. Conte, 931 A.2d 690 (Pa.Super.2007) is misplaced. In Conte, the police officer responded to a radio call regarding a possibly disabled vehicle and was advised by the defendant that he had a flat tire. Id. at 691.
¶ 6 In other cases, this Court has routinely held that a police approach to a vehicle to lend assistance may form the basis for a “mere encounter” only where the occupants of the vehicle would reasonably expect the officer to be rendering assistance. See, e.g., Commonwealth v. Fuller, 940 A.2d 476, 480 (Pa.Super.2007) (investigative detention found where “Appellee did not engage in any conduct that would suggest to the police that he needed assistance“); Commonwealth v. Hill, 874 A.2d 1214, 1216 (Pa.Super.2005) (“Appellee did nothing more than pull his truck to the side of the road in an effort to allow another motorist to pass. Appellee had no reason to expect that a police officer would stop to render aid.“).
¶ 7 The issue in this case is not whether рolice officers should be allowed to lend assistance to the occupants of parked vehicles or people in general. Such safety checks are laudable and appropriate. Instead, the issue here is whether evidence of crimes must be suppressed when police encounters with citizens proceed without any reasonable suspicion of criminal activity. As a result, I would affirm the well-researched and eminently reasonable dеcision of the suppression court below.