*1 сy and there- and that is the reason Burke’s individu- party, from a third obtained Nonetheless, subject subrogation). policy to al is not at issue here. fore are not into agreement Burke enter an cannot Thus, appears it that in the at 800. Id. whereby compen- he the retains workers’ proceeding acquir- directed at arbitration (the by to him Erie paid sation benefits underin- ing proceeds Employer’s from waived) of lien that Erie amount the Burke policy, motorist insurance sured еqual an attempt again then to recover recovery seek of the should be able to proceeding spe- in the arbitration sum re- benefits he compensation workers’ damages. noted previously, cial As the compen- Employer’s ceived from workers’ agreement of to the parties intent the However, pres- carrier. under sation regarding to remove issue work- case; circumstances, is not the ent from arbitration compensation еrs’ plead, prove Burke is not entitled mo- dealing Employer’s with underinsured Em- he from recover benefits received policy. properly torist Burke was denied compensation workers’ carrier. ployer’s plead prove opportunity “as begin by stating We way of work- payments he retained law, employer’s general principle of compensation light of the ers’ benefits subrogation rights statutorily are absolute into at the time agreement he enterеd abrogated only by and can be choice.” compensation settled workers’ case (USF Go.), 566 Thompson v. & W.C.A.B. G Accordingly, Erie. we conclude that with Pa.420, 1146, 1152(2001) (quoting 781 A.2d upheld the arbitra- properly the trial court Co., Philadelphia Elec. 520 Pa. Winfree tor’s decision. (1989)). 392, 485, Here, since 554 A.2d unique position being Judgment affirmed. occupies Erie compensation Employer’s both workers’ carrier,
carrier its vehicle insurance it
agreed forgo compensation the workers’ compensation
lien in the workers’ context the intent that the amount of the hen
with damages not be an item of special
would Burke in the arbitration could recover involving Employer’s underin proceeding Pennsylvania, COMMONWEALTH attempt policy. Burke’s sured motorist Appellee, pay compensation include the workers’ the arbi damages ments as an item of FULLER, Appellant. David John essentially attempt to avoid tration is agreement into with he entered Superior Pennsylvania. Court settling compensation Erie the worker’s Aug. 2007. Submitted in a litigation and would result double recovery, permit. the Act which does Dec. Filed Tannenbaum, at 269. See overlooking Burke is Essentially, case makes between
distinction the Ricks policy
Employer’s underinsured motorist’s individually by Burke. policy paid
and a Ricks, re-
According Employer cannot poli- personal its lien against
cover Burke’s *2 Masorti,
Philip College, M. for ap- State pellant. Crowley, Atty.,
John F. Asst. Dist. Wellsboro, Com., appellee. TODD, KLEIN, BEFORE: POPOVICH, JJ. TODD,
OPINION BY J.: ¶ 1 appeals judg- David John Fuller imposed by Tioga ment of sentence County Court of Common Pleas after he that the driving troopers convicted under the influ- have basis (“DUI”)1 requisite alcohol to bе- ence of related sum- lieve had a motor mary committed offenses. are constrained to va- We code violation and thus conduct a Appellant’s and vehicle judgment cate sentence *3 stop. Following hearing, the trial a remand the case for a new trial. motion, Appellant’s court conclud- denied May 11, 2006, 2 shortly On after mid- ing subjected was to a mere Appellant Pennsylvania night, Troopers State Wil- detention, encounter, investigative not an liam Hoppel and Thomas Wool were trav- and, therefore, troopers were eling south-bound on Gulick Street of required possess Blossburg Borough when observed Appellant’s a motor vehicle code violation. pick-up a distance ahead truck driven for was subsequent motion reconsideration by Appellant traveling in the same di- trial, denied, Appellant a nonjury and at Trooper Hoppel rection. testified that as sum- guilty was found of DUI and related eventually he and caught up Wool 2007, mary 5, On March offenses. truck, to the back of the the truck slowed to a term Appellant court sentenced complete stop down almost a then and This days years of 90 to 5 incarceration. off onto pulled the berm of road. The followed, appeal argues Appellant wherein troopers pulled then their vehicle onto denying his the trial court erred truck, Appellant’s berm behind and acti- suppress.2 motion tо lights. their emergency vated When ¶ 4 It is well settled that Trooper Hoppel exited the car and truck, [wjhen approached Appellant’s denying he noticed a reviewing an order Appellant wearing evidence, was his seat- we must suppress motion to belt, his eyes findings were and bloodshot whether the factual determine by and glassy, supported that he smelled of alcohol. of trial court are Upon Trooper Hoppel’s request, making of record. In this de Appellant evidence license, termination, may only his but this consid produced driver’s could not Court er of find his or the evidence the Commonwealth’s registration vehicle insurance witnesses, so the evidence why pulled card. and much of When asked off the defendant, as read in the fairly roadway, Appellant told Hoppel whole, context of the record as you guys “because were behind me.” (N.T. 8.) If the evidence remains uncontradicted. Hearing, Troоper Hop- court, findings the trial supports the coming asked pel Appellant where was may by findings we such are bound from, and he that he com- responded was legal if the conclusions only reverse ing from bar. then therefrom are erroneous. drawn perform requested Appellant several tests, sobriety and when un- 264, field he was A.2d Ingram, 814 Commonwealth so, omitted). placed (citations to do under Appellant able (Pa.Super.2002) 269 Appel- arrest. A test revealed thаt blood has de Supreme 5 Our Court lant had alcohol blood concentration police-citizen fined interac three forms (“BAC”) of .18%. encounter, investigative tion: an a mere trial, detention, 3 Prior to a mo- and a detention. filed custodial 275, Boswell, Pa. suppress tion to evidence of his BAC on Commonwealth 3802(a)(1) (c). a brief § 1. 75 The has not filed Pa.C.S.A. Commonwealth this matter. (1998). 336, posted speed lights A.2d A mere limit with his hazard vehicle, flashing. appellant pulled encounter betweеn and a citizen his supported by any previously damaged “need not be of which had been level accident, off to the side of the road without suspicion, compul no official carries] officer part prompting sion on the the officer. The of the citizen to or to car behind the acti- respond.” appellant’s, Riley, Commonwealth v. lights vated his overhead and noticed se- (Pa.Super.1998). An in damage appel- vere to both sides of the vestigatory stop, subjects suspect which approached lant’s car. the officer When detention, to a a period but appellant, signs he noticed of intoxi- does not involve such coercive conditions observations, cation. Based on his the of- arrest, *4 as to constitute an a requires rea appellant perform ficer had the a field suspicion sonable that activity criminal is test, sobriety appellant which the failed. Ohio, Terry 1, 21, afoot. See 392 U.S. appellant was arrested on DUI (1968). 88 S.Ct. 20 A L.Ed.2d 889 charges and to trial filed motion custodial detention is an arrest and must suppress, alleged wherein he supported by probable cause. Id. stop roadside of his an vehicle was investi- ¶ 6 In evaluating whether an inter gative detention which was not supported action to the investigative rises level of an suspicion. reasonable The trial court detention, court “the must examine all the untimely denied the motion as and the circumstances po and determine whether defendant was convicted. lice action would have made a reasonable appeal, 9 agreed On this Court person believe he go was free to appellant’s pretrial motion was untime- subject was to the officer’s orders.” Com ly, but in dicta reached the merits of the Stevenson, monwealth v. 832 stop motion and held that the initial awas (Pa.Super.2003). mere encounter which did not automatical- ¶ In holding trooрers’ that the interac- ly an investigative escalate into detention tion with constituted a mere en- when the officer activated his overhead counter, opposed investigative to an de- lights, stating: tention, court noted that It is one traditional function of State troopers did not initiate a traffic Troopers, police and indeed all officers Appellant, but Appellant pulled rather that patrolling highways, help our motor- off the road on his own thаt it accord and may are ists who stranded or who other- was troopers reasonable for the wise need assistance. Such assistance is and determine whether he was in need of generally expected, to be and is consid- assistance. The opined trial court further ered welcome. troopers the fact that activated Often, particularly night, at there emergency their lights before way simply is no to render this aid Hoppel exited the poliсe ap- car and safely activating police without first proached Appellant’s vehicle on foot “does fights. This act cruiser’s overhead not raise the level of intrusiveness from a functions, including serves several avoid- investigative mere encounter to an deten- po- ing highway, a collision on the (Trial 5) Opinion, tion.” Court at tentially calling additional aid to the Johonoson, (citing Commonwealth v. Moreover, by activating scene. (Pa.Super.2004).) A.2d 556 signals to the fights, оverhead the officer Johonoson, In a police actually police officer ob- that it is offi- motorist (rather appellant potentially dangerous served the on a rural road late at than a cer night driving substantially stranger) approaching. slower than the who is case, at 562. be- traveling
Id.
We further held that the en-
who was
well
investigative
counter did not
an
low
limit
a rural road
speed
become
on
appel-
lights
detention until the
his
activat-
officеr
3:00 a.m. with
hazard
face,”
ed,
point
lant came “face to
at which
more than
Appellee
nothing
observation,
officer’s
from “a
lawful van-
truck to the side -of the road
an
tage point,”
signs
provid-
pass.
intoxication
effort to allow another motorist
probable
ap-
ed
cause to believe
no
Appellee
expect
that the
had
reason to
that a
pellant had committed a DUI.
Id. at 563.
officer would
render aid.
stop to
Indeed, Appellee testified that when the
Hill,
In10
Commonwealth
874 A.2d
him,
oncoming
vehicle
in behind
however,
(Pa.Super.2005),
fac-
case
he considered
until
leaving
tually
from
indistinguishable
the case sub
Koebley
flashing
activated his overhead
this
judice,
ap-
concluded that the
Court
lights.
pellee’s
interaction with
officers was
however, Officer
importantly,
More
more than
encounter and
mere
constitut-
on
Nuhfer conceded
cross-examination
investigative
required
ed
detention
freе to terminate
Appellee
part
on
of the
*5
Koebley ac-
Trooper
the encounter once
Therein,
police officers.
two officers were
stating,
lights,
tivated his overhead
traveling
appellee’s pick-up
behind the
acti-
emergency lights
“Once the
were
at night.
truck late
the
car
When
officers’
...
have been
[Appellee]
vated
would
lengths
was
car
approximately nine
behind
Hence,
...
required
stay stopped.”
to
apрellee’s,
appellee pulled
the
the
over to
fully
suppres-
the
the
supports
record
side of the
stopped.
road and
At
that the initial
sion court’s determination
the
point,
pulled
officers
behind
appel-
the
rather
interaction amounted to a seizure
track,
lee’s
their
activated
overhead flash-
than a mere encounter.
ing lights,
“approached
and
track to
the
Appellee
ascertain whether
needed assis-
(record
Hill,
A.2d at 1219
citation
tance.” Id.
at 1216. One
the officers
Conte,
omitted);
Commonwealth
cf.
detected the
alcohol on
appel-
odor of
the
(Pa.Super.2007) (holding
wealth Hill, Ap 12 Like the in appellee argued supra, that the trial court erred pellant engage any conduct that did not determining that the officers effectuated police suggest would needed they seizure when activated their overhead driving significant assistance. He was not lights prior approaching appellee’s limit, ly unusually speed or below the track. In affirming sup- court’s on, as lights did not have his hazard ordеr, pression this Court stated: Indeed, appellant Johonoson. Trooper reliance that the officers Hoppel Commonwealth’s on Joho- testified misplaced. noson is Unlike the driver did not behind because violation, any just pick-up observed motor vehicle but as to how fast the truck was Hoppel they rather because “we noted that traveling, Trooper didn’t know what (N.T. was, going having situation what was on.” closed in on the truck without 27.) Furthermore, Hearing, at limit As the sрeed like exceed the themselves. Hill, truck, the case in when it came to Troopers approached asked whether he believed that the activa- a near in the middle of the traffic lane tion emergency lights sig- of the overhead on and then off the road without his police signal naling. Although Troopers recognized vehicle “was a for the stay motorist to there and that he pulling signaling would that off the road without time,” violation, free to at that pоint they leave was a traffic were more “I Hoppel responded agree would concerned the odd nature of the with be- probably Troopers pulled [the motorist] would inter- havior of the truck. The (M 32.) pret way.” truck, it that at in part, behind least be- if cause wanted to see there were Hill, 13 In accordance with we con- problems with the driver. subjected clude that Appellant was to an detention, investigatory which must proble- have 3 The facts in this matter are been supported by a suspicion anything matic in that as much as it ap- activity. of criminal In that Hop- pears police that the had mixed motives pel failed to articulate facts that would initiating contact with Fuller. While establish reasonable of criminal police may not have initiated contact activity, we find that the detention was solely with Fuller because of the invalid, and that the evidence obtained a violation, the facts remain that the rеsult thereof should sup- have been infraction, were aware of the *6 pressed. Accordingly, we are constrained the prob- cited infraction in the affidavit of Appellant’s vacate judgment of sentence cause, able the infraction occurred and remand this matter for a new Fuller, any personal po- contact with the with instructions that Appellant’s motion infraction, lice cited Fuller for the and the suppress granted. be trial court convicted Fuller of the infrac- tion.
¶ Judgment of sentence VACATED. Case REMANDED. RELIN- Jurisdiction ¶ 4 I also note that the trial court does QUISHED. classify not pretext. the infraction as a challenge Fuller does not
¶ the infraction as Klein, a Dissenting Opinion. J. files pretext. Although challenged Fuller the KLEIN, DISSENTING OPINION BY infraction at the trial level on a factual J.: basis, challenge propriety he does not the of the conviction before our Court.
¶ 1 reviewing record, After I reach majority different conclusion than the ¶ re- majority 5 The notes that garding whether possessed a Hoppel using denied the trafile infraction reasonable suspicion support sufficient to as a pull reason to over behind Fuller the interaction between the Police State Indeed, Trooper Hoppel testify truck. did and Fuller. that the infraction was not the sole reason for investigating. exchange One between 11, 2006, midnight, May At about defense counsel and is Troopers Hoppel (passenger) and Wool recounted: (driver) patrol Blossburg were on in Bor-
ough they spotted Chevy Question: you when And then and the other a blue S-10 pick-up truck traveling slowly on Gulick initiated a traffic re- Although testimony Street. there was no sult of that violation Motor Vehicle Code Troop- interpretation supported is is that your presence; in which occurred pull over testimony er’s true? of the traffic violation and “just because” No, in pull didn’t Trooper Hoppel: we that a traffiс Trooper’s recognition by the him he didn’t use behind because The use of observed. violation had been him in signal; pulled turn we behind indicates that “just because” phrase the situa- didn’t know what because we a factor in decid- traffic violation was was, going what was on. tion investigate. over and ing you— Question: So the vi- Trooper Hoppel: observed actually We con- court Finally, the trial olation, why pulled but that’s not we viola- predicate victed Fuller of the behind him. convicted simply Fuller tion. DUI, he Pennsylva- trained
Question: summary So two offenses related in Bloss- violation Troopers patrol nia on of a traffic State was convicted Troopers pulled burg midnight observe a Motor Vehi- place took before any con- had and that’s not truck and pick-up cle Code violation behind the you in behind him? pulled reason tact with Fuller. inci- Trooper Hoppel: specific This to state very difficult 8 I find it dent, why we yeah, that’s not the reаson inves suspicion to no reasonable there was just him is because pulled behind con has been tigate where the defendant signal. didn’t use his turn We only that not a traffic offense victed of because, said, him, I as we like behind suspicion, but provides a reasonable came to a and he almost approached absolutely the existence demonstrates road, thought we I understand probable cause. While act, suspi- a normal that was
wasn’t credit this cоnvic majority’s reluctance to cious— equivocal testim to the Trooper’s tion due Question: Okay. accept the must ony,3 I believe that we Trooper Hoppel: there fa light in the most Trooper’s testimony —and there, on might something going be Commonwealth, in which vorable to the something might wrong, and that’s list cause probable cludes affidavit *7 why we in behind him. well as traffic violation as ing the Hearing, pull at 27- Suppression N.T. did not statement that Trooper’s 28. the traffic violatiоn.4 “just over because” of the realiza testimony Trooper, of the evi- quoted In addition to the above nor trial court tion that neither the dence, to the stipulated counsel defense violation the traffic defense has called cause probable in the affidavit of evidence not the defense is the fact that pretext, testimo- Trooper Hoppel’s in of direct lieu the conviction validity of challenging the Therefore, of ny. because the affidavit knowledge offense, and the for the traf- recounts the observed probable cause any if a decision may affirm I that we stop, to the would fic violation exists, Common for affirmance grounds at least traffic violation was accept Dancer, 460 Pa. matter. This wealth v. equation of the this part stipu- remembering the defense strange It bears testimony particularly 3. The seems during Trooper clearly that there probable states cause because the affidavit of lated to stop make a traffic or probable cause to testimony. Trooper’s direct Trooper then stop investigate, but the to probable away partially from backs cause. (1975), n. leads me to conclude that would be blind not to realize that suspicion Troopers suspected there was sufficient must have least However, DUI. also reflects in behind the Fuller evidence and investi- possibility a real issue as to the of a situа- gate. Troopers may simply tion where the have ¶ 9 At the I beginning of this statement been of some assistance. In a situation mentioned that the Trooper appeared to ordinary such as where out of the this have mixed stopping motives for behind or signal benign behavior can either crimi- Fuller and I investigating. do not believe nal I policy conduct do not believe that the ramifications of a “mixed motive” of require the Commonwealth should be to explored need to be in this matter because ignore togeth- the situation all can matter be resolved without such any subsequent discovery er of because However, discussion. since cases such as activity criminal would not be actionable or Johonoson, Commonwealth v. 844 A.2d investigate possibility helping (Pa.Super.2004) (acceptable stop ignore individual but then to the subse- aid, render subsequent discovery wrong- quent discovery of the criminal because doing suppressed), havе been decided only suppressed. such evidence would exceptions and have introduced to traffic ¶ 11 Thankfully, potentially thorny this law, may such “mixed motive” facts issue need not be addressed this matter. now be seen. The is un- law somewhat Nonetheless, I because believe the record clear as to what happen should if a supports finding of reasonable suspicion, officer has both benign (safety) and suspi- I would affirm the trial court. DUI) (e.g. possible cious reаsons for inves- tigating a situation. may Future cases
include a conviction for a traffic violation provides probable cause. No one precisely
delved into what may
believed have taking place been Pennsylvania, matter, this so COMMONWEALTH regarding statement Appellant this would seem speculation. to be How- ever, given the factual scenario it is not difficult to see how one could believe that KANE, Appellee. Michael driver was some distress or was Pennsylvania, Commоnwealth of perhaps simply lost or looking for a house Equally, Trooper number. might believe
that a driver who to a slows near
the middle of the road inis some manner Ruh, Appellee. Richard impaired. Pennsylvania, Commonwealth of Slowing to a pulling near not, itself, might off the road in and of provide a reasonable for investi-
gation. immediately behavior is Such Spreng, Appellee. Paul indicative of either criminal behavior or of Superior Pennsylvania. Court of type some But it distress. is odd behav- July 2007. Submitted ior, sure, to be and it is understandable Filed Dec. why police see officer would want to find what, anything, problem out if is. Giv- incident, place
en the time and of this I