Com. v. Shaw, C. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
CHRISTOPHER L SHAW :
:
Appellant : No. 197 MDA 2021
Appeal from the Judgment of Sentence Entered January 28, 2021
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0004970-2019
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: FEBRUARY 3, 2022
Appellant, Christopher L. Shaw, appeals from the judgment of sentence
entered in the Lancaster County Court of Common Pleas, following his
stipulated bench trial convictions for firearms not to be carried without a
license and public drunkenness.1 We affirm.
The trial court opinion sets forth the relevant facts as follows:
At the suppression hearing, Detective Burgett testified that
on August 26, 2019, at approximately 9:45 p.m., he and
Officer Schwebel (“Schwebel”) were dispatched to a
weapons call in the 400 block of Poplar Street in Lancaster
City. The caller indicated that a white male wearing a
baseball hat and gray or red T-shirt was walking on Poplar
Street with a rifle. Burgett and Schwebel arrived at the
location four minutes later without activating their patrol
vehicle’s lights or siren and parked their vehicle six or seven
houses west of where they encountered Appellant. Burgett
noted that Appellant matched the description as a white
male who was wearing a baseball hat and black T-shirt. The
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1 18 Pa.C.S.A. §§ 6106(a)(1) and 5505, respectively.
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officers exited their vehicle and began walking towards
Appellant, who was the only person Burgett saw on the
entire block.
From roughly twenty yards away, Burgett asked in a calm
tone of voice whether he could talk to Appellant. Burgett’s
weapon was holstered, and he did not tell Appellant he was
not free to leave. In response, Appellant approached the
officers saying something about a guy chasing a girl. While
Appellant was coming closer, Burgett saw an unknown
object near Appellant’s front waistband. As they got closer
to one another, Appellant turned around, crouched over a
couple times, kept grabbing onto things to hold, and stated
he had to urinate. Burgett maintained a distance because
of Appellant’s suspicious behavior. Although Burgett could
not say for sure, he believed Appellant appeared to be
manifestly under the influence of alcohol.
As Appellant began to walk away from the encounter,
Burgett instructed him to stop and Appellant complied.
When the officers reached Appellant, Burgett observed from
three feet away that Appellant had bloodshot eyes and the
odor of alcohol emanating from his breath. Burgett also
observed the butt of a handgun beneath Appellant’s shirt at
his belt line. When Burgett asked Appellant if he had
anything in his waistband, Appellant replied that he did not.
Burgett then told Appellant to put his hands behind his back
and Appellant responded by acknowledging he had a firearm
in his waistband. Eventually, Burgett handcuffed Appellant
and Appellant urinated himself. After handcuffing Appellant,
Burgett removed the firearm from Appellant’s waist.
Burgett then contacted county communications and
determined that Appellant did not have a permit to carry a
concealed firearm.
Burgett was wearing a body camera during this incident,
footage from the body camera was marked as
Commonwealth Suppression Hearing Exhibit Number 1, and
the video was played for the court. After viewing the video,
the court noted that Appellant showed indicia of
intoxication.
(Trial Court Opinion, filed March 11, 2021, at 1-3) (internal citations omitted).
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Appellant filed a motion to suppress on December 24, 2019. On July
29, 2020, the court held a suppression hearing, and it denied Appellant’s
motion on September 14, 2020. On October 9, 2020, the court held a
stipulated bench trial, after which the trial court found Appellant guilty of
firearms not to be carried without a license and public drunkenness. The court
sentenced Appellant to 6 to 23 months’ house arrest followed by 3 years’
probation on January 28, 2021. Appellant timely filed a notice of appeal on
February 12, 2021. On February 16, 2021, the court ordered Appellant to file
a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and
Appellant timely complied.
Appellant raises the following issues for our review:
Whether the trial court erred, as a matter of law, when it
denied Appellant’s suppression motion and specifically
found: (a) Appellant’s detention was supported by
reasonable suspicion to believe he was committing the crime
of public drunkenness or a firearms offense; and (b)
alternatively, if there was no detention until Appellant was
arrested, that there was probable cause to arrest him for
public drunkenness?
Whether the trial court erred, as a matter of law, when it
found there was sufficient evidence in the record to convict
Appellant of public drunkenness, beyond a reasonable
doubt?
(Appellant’s Brief at 3).
In his first issue, Appellant argues that his initial encounter with the
police rose from a mere encounter to an investigative detention after the
police requests escalated to commands. Appellant claims that the police
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subjected him to an unlawful investigative detention without reasonable
suspicion to believe he was committing or had committed a crime. Instead,
Appellant reasons that the police had only a hunch that criminal activity was
afoot but without specific and articulable facts to warrant Appellant’s seizure.
Appellant asserts that his bloodshot eyes and the odor of alcohol were
insufficient to establish that he was manifestly under the influence of alcohol
and a danger to himself to justify an investigative detention. Further,
Appellant alleges that the police did not have reasonable suspicion to believe
Appellant committed any weapons offense. Appellant contends that during
his unlawful detention, the police obtained evidence used as justification of his
unlawful arrest.
Alternatively, Appellant argues that the court erred when it found the
police had probable cause to arrest him for public drunkenness. Appellant
alleges error occurred when the court relied on evidence such as Appellant
crouching over, grabbing onto things, and urinating himself. Appellant
contends that this evidence related to any potential indicia of intoxication
occurred after Appellant was subjected to an unlawful detention. Further,
Appellant reasons that even if this evidence was obtained lawfully, it still fails
to provide sufficient probable cause to support Appellant’s arrest for public
drunkenness. Appellant concludes that this Court should overturn the denial
of his suppression motion and grant appropriate relief. We disagree.
“Our standard of review in addressing a challenge to a trial court’s denial
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of a suppression motion is limited to determining whether the factual findings
are supported by the record and whether the legal conclusions drawn from
those facts are correct.” Commonwealth v. H. Williams, 941 A.2d 14, 26
(Pa.Super. 2008) (en banc) (internal citations omitted).
[W]e may consider only the evidence of the prosecution and
so much of the evidence for the defense as remains
uncontradicted when read in the context of the record as a
whole. Where the record supports the findings of the
suppression court, we are bound by those facts and may
reverse only if the court erred in reaching its legal
conclusions based upon the facts.
Id. at 27. The reviewing court’s scope of review is limited to the evidentiary
record of the pre-trial hearing on the suppression motion. In re L.J., 622 Pa.
126, 79 A.3d 1073 (2013). “It is within the suppression court’s sole province
as factfinder to pass on the credibility of witnesses and the weight to be given
their testimony.” Commonwealth v. Luczki, 212 A.3d 530, 542 (Pa.Super.
2019) (quoting Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa.Super.
2013)). If appellate review of the suppression court’s decision “turns on
allegations of legal error,” then the trial court’s legal conclusions are
nonbinding on appeal and subject to plenary review. Commonwealth v.
Smith, 164 A.3d 1255, 1257 (Pa.Super. 2017) (quoting Commonwealth v.
Jones, 121 A.3d 524, 526-27 (Pa.Super. 2015), appeal denied, 635 Pa. 750,
135 A.3d 584 (2016)).
The Fourth Amendment to the United States Constitution and Article I,
Section 8 of the Pennsylvania Constitution guarantee the right of the people
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to be secure in their persons, houses, papers, and possessions from
unreasonable searches and seizures. Commonwealth v. Morrison, 166
A.3d 357, 363-64 (Pa.Super. 2017). “To secure the right of citizens to be free
from unreasonable search and seizure, courts in Pennsylvania require law
enforcement officers to demonstrate ascending levels of suspicion to justify
their interactions with citizens to the extent those interactions compromise
individual liberty.” Commonwealth v. Hampton, 204 A.3d 452, 456
(Pa.Super. 2019). Because interactions between law enforcement and the
general citizenry are widely varied, search and seizure law examines how the
interaction is classified and if a detention has occurred. Commonwealth v.
DeHart, 745 A.2d 633, 636 (Pa.Super. 2000).
The focus of search and seizure law “remains on the delicate balance of
protecting the right of citizens to be free from unreasonable searches and
seizures and protecting the safety of our citizens and police officers by allowing
police to make limited intrusions on citizens while investigating crime.”
Commonwealth v. Moultrie, 870 A.2d 352, 356 (Pa.Super. 2005) (quoting
Commonwealth v. Blair, 860 A.2d 567, 571 (Pa.Super. 2004)) (internal
quotation marks omitted). “[I]n assessing the lawfulness of citizen/police
encounters, a central, threshold issue is whether...the citizen-subject has
been seized.” Commonwealth v. Strickler, 563 Pa. 47, 57, 757 A.2d 884,
889 (2000).
Contacts between the police and citizenry fall within three general
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classifications:
The first [level of interaction] is 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 a 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 cause.
Commonwealth v. Goldsborough, 31 A.3d 299, 305 (Pa.Super. 2011),
appeal denied, 616 Pa. 651, 49 A.3d 442 (2012) (quoting Commonwealth
v. Bryant, 866 A.2d 1143, 1146 (Pa.Super. 2005), appeal denied, 583 Pa.
668, 876 A.2d 392 (2005)). During a mere encounter, “[a]s long as the
person to whom questions are put remains free to disregard the questions and
walk away, there has been no intrusion upon that person’s liberty or privacy
as would under the Constitution require some particularized and objective
justification.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct.
1870, 1877, 64 L.Ed.2d 497 (1980).
The Pennsylvania Supreme Court has instructed this Court to view “all
circumstances evidencing a show of authority or exercise of force, including
the demeanor of the police officer, the manner of expression used by the
officer in addressing the citizen, and the content of the interrogatories or
statements.” Commonwealth v. Parker, 161 A.3d 357, 363 (Pa.Super.
2017). The following non-exclusive list of factors are also relevant to the
inquiry:
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[T]he number of officers present during the interaction;
whether the officer informs the citizen they are suspected of
criminal activity; the officer’s demeanor and tone of voice;
the location and timing of the interaction; the visible
presence of weapons on the officer; and the questions
asked. Otherwise inoffensive contact between a member of
the public and the police cannot, as a matter of law, amount
to a seizure of that person.
Id.Police must have reasonable suspicion that a person seized is engaged
in unlawful activity before subjecting that person to an investigative detention.
Commonwealth v. Cottman, 764 A.2d 595 (Pa.Super. 2000).
An investigative detention, unlike a mere encounter,
constitutes a seizure of a person and thus activates the
protections of Article 1, Section 8 of the Pennsylvania
Constitution. To institute an investigative detention, an
officer must have at least a reasonable suspicion that
criminal activity is afoot. Reasonable suspicion requires a
finding that based on the available facts, a person of
reasonable caution would believe the intrusion was
appropriate.
* * *
Reasonable suspicion exists only where the officer is able to
articulate specific observations which, in conjunction with
reasonable inferences derived from those observations, led
him reasonably to conclude, in light of his experience, that
criminal activity was afoot and that the person he stopped
was involved in that activity. Therefore, the fundamental
inquiry of a reviewing court must be an objective one,
namely, whether the facts available to the officer at the
moment of intrusion warrant a [person] of reasonable
caution in the belief that the action taken was appropriate.
Commonwealth v. Jones, 874 A.2d 108, 116 (Pa.Super. 2005) (internal
citations omitted).
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“[T]he question of whether reasonable suspicion existed at the time of
an investigatory detention must be answered by examining the totality of the
circumstances to determine whether there was a particularized and objective
basis for suspecting the individual stopped of criminal activity.” Cottman,
supra at 598-99 (quoting Commonwealth v. Beasley, 761 A.2d 621, 625-
26 (Pa.Super. 2000), appeal denied, 565 Pa. 662, 775 A.2d 801 (2001)).
“These circumstances are to be viewed through the eyes of a trained officer.”
Commonwealth v. Jackson, 907 A.2d 540, 543 (Pa.Super. 2006).
In making this determination, we must give due weight...to
the specific reasonable inferences the police officer is
entitled to draw from the facts in light of his experience.
Also, the totality of the circumstances test does not limit our
inquiry to an examination of only those facts that clearly
indicate criminal conduct. Rather, even a combination of
innocent facts, when taken together, may warrant further
investigation by the police officer.
Commonwealth v. Young, 904 A.2d 947, 957 (Pa.Super. 2006), appeal
denied, 591 Pa. 664, 916 A.2d 633 (2006) (internal citations and quotation
marks omitted). Behavior indicative of the presence of a firearm contributes
to the totality of the circumstances in determining whether there is reasonable
suspicion to investigate further. Commonwealth v. Hicks, 652 Pa. 353, 208
A.3d 916 (2019), cert. denied, ___ U.S. ___, 140 S.Ct. 645, 205 L.Ed.2d 410(2019).
An arrest or “custodial detention” must be supported by probable cause:
Probable cause is made out when the facts and
circumstances which are within the knowledge of the officer
at the time of the arrest, and of which he has reasonably
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trustworthy information, are sufficient to warrant a [person]
of reasonable caution in the belief that the suspect has
committed or is committing a crime. The question we ask
is not whether the officer’s belief was correct or more likely
true than false. Rather, we require only a probability, and
not a prima facie showing, of criminal activity. In
determining whether probable cause exists, we apply a
totality of the circumstances test.
Commonwealth v. R. Williams, 2 A.3d 611, 616 (Pa.Super. 2010) (en
banc), appeal denied, 610 Pa. 586, 19 A.3d 1051 (2011) (internal citations
and quotation marks omitted) (emphasis in original).
“The key difference between an investigative and a custodial detention
is that the latter ‘involves such coercive conditions as to constitute the
functional equivalent of an arrest.’” Commonwealth v. Gonzalez, 979 A.2d
879, 887 (Pa.Super. 2009) (quoting Commonwealth v. Pakacki, 587 Pa.
511, 519, 901 A.2d 983, 987 (2006)). Unlike a custodial detention or a formal
arrest, an investigative detention does not require probable cause because it
lacks the same magnitude of coercive conditions. Commonwealth v.
Douglass, 539 A.2d 412 (Pa.Super. 1988).
The court considers the totality of the circumstances to
determine if an encounter is investigatory or custodial, but
the following factors are specifically considered: the basis
for the detention; the duration; the location; whether the
suspect was transported against his will, how far, and why;
whether restraints were used; the show, threat or use of
force; and the methods of investigation used to confirm or
dispel suspicions.
Commonwealth v. Teeter, 961 A.2d 890, 899 (Pa.Super. 2008).
In Commonwealth v. Newsome, 170 A.3d 1151 (Pa.Super. 2017), a
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police officer responded to an anonymous radio call that several individuals
were passing around a firearm in an area in Philadelphia known for shootings.
The officer arrived at the location in full uniform and a marked patrol car,
without the lights or sirens engaged. Id. at 1156. The officer approached the
defendant and he “asked” the defendant “to come here” so he could talk to
him, but the defendant refused and continued walking down the street. Id.
At a suppression hearing, the officer testified that he approached the
defendant to both investigate the radio call and because he believed the
defendant to be in violation of Philadelphia’s curfew. Id.
No evidence suggested that the officer brandished his weapon or
engaged in an overwhelming show of force. Id. Further, the officer did not
tell the defendant that he was not free to leave, nor was there any evidence
presented that he positioned himself in a manner that obstructed the
defendant’s ability to continue walking down the street. Id. Notably, the
officer acknowledged on cross-examination that he “asked [the defendant] to
stop” two or three times. However, there was no evidence that the officer
threatened any consequences for non-compliance or used an authoritative
tone. Id.
This Court reversed and remanded the trial court’s grant of the
defendant’s motion to suppress. Id. Specifically, this Court held that the
defendant was not seized during his initial encounter, where the officer’s
request of the defendant that he “come here” so he could talk to him “was not
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a substantial impairment on the defendant’s liberty of movement, particularly
considering the officer’s legitimate concerns for the safety of the community
and his sound belief that [the defendant] may have been in violation of
Philadelphia’s curfew.” Id.
Instantly, the court explained that the initial interaction between
Appellant and the police officers constituted a mere encounter, stating:
In the present case, Burgett and Schwebel responded to the
scene without activating their vehicle lights or siren, parked
their vehicle six or seven houses away from where they
encountered Appellant, exited their vehicle, and began
walking towards Appellant. From twenty yards away,
Burgett asked Appellant in a calm tone of voice whether they
could speak. Burgett’s weapon was holstered and he did
not tell Appellant he was not free to leave.
(Trial Court Opinion at 4).
We agree with the court’s analysis that the initial interaction between
the officers and Appellant was a mere encounter. This initial interaction
involved no police lights, guns drawn, intimidating movement, show of force,
obstruction, physical restraint, or commanding tone of voice. See
Mendenhall, supra; Newsome, supra. The officers conveyed no demand
for compliance, they merely asked if they could speak to Appellant. Therefore,
the initial interaction was a mere encounter which did not require any level of
suspicion. See Goldsborough, supra; Bryant supra.Further, the court provided its reasons for how this mere encounter
escalated to an investigatory detention:
[O]fficers encountered Appellant four minutes after
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receiving a report of a man walking in the street with a gun.
Appellant was the only person on the street and he matched
the description given. Appellant voluntarily approached the
officers and said something about a guy chasing a girl.
During this initial interaction, Burgett saw an unknown
object near Appellant’s front waistband. Burgett maintained
a distance because of Appellant’s suspicious behavior. As
they got closer to one another, Burgett observed Appellant
turn around, crouch over a couple of times, and keep
grabbing onto things to hold. Appellant also stated he had
to urinate. Based on these observations, Burgett
reasonably believed that Appellant was manifestly under the
influence of alcohol. Therefore, Burgett was permitted to
conduct an investigative detention.
(Trial Court Opinion at 6-7).
Our review of the record supports the court’s assessment that the
officers’ initial interaction with Appellant was a mere encounter that developed
into an investigative detention. The record further supports the suppression
court’s decision that Officer Burgett had reasonable suspicion to conduct an
investigatory detention. The following facts support this determination.
Officer Burgett was initially dispatched for a weapons call involving a white
male wearing a baseball hat and either a gray or red T-shirt walking down the
road carrying a rifle. (See N.T. Suppression, 7/29/20, at 7). Upon arrival to
this location within five minutes of the dispatch, Officer Burgett observed only
one person on the entire block, who was later identified as Appellant. (Id. at
8). Appellant matched the general description of the information in the
dispatch. Although the description did not provide an exact match as
Appellant was wearing a black T-shirt and not a gray or red one, our Supreme
Court has rejected the notion that “the existence of a single fact contradictory
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to a police radio broadcast required an officer to ignore…other incriminating
factors.” See Commonwealth v. Walls, 53 A.3d 889, 894 (Pa.Super. 2012)
(citing Commonwealth v. Ellis, 541 Pa. 285, 295, 662 A.2d 1043, 1048
(1995)).
During the initial mere encounter, Officer Burgett noticed “something
near [Appellant’s] front waistband…” and Appellant “kept grabbing on to stuff
to hold. And then [Appellant] was crouching over and he had stated that he
had to urinate.” (N.T. Suppression at 10). At this point, Officer Burgett could
not determine whether Appellant was intoxicated but the officer testified that
“it pointed in that direction.” (Id.) Subsequently, Appellant attempted to
walk away from this interaction, and Officer Burgett “told him to stop and stop
walking away from us.” (Id. at 11). Once Appellant complied with the request
to stay, Officer Burgett “noticed an odor of alcohol and [Appellant’s] bloodshot
eyes and then [Officer Burgett] observed a bulge, which to [the officer]
was…the butt of a handgun coming through [Appellant’s] shirt right at
[Appellant’s] belt line.” (Id.)
The totality of the circumstances shows that Officer Burgett encountered
a person matching the general description of an individual possessing a
firearm on a public street. Officer Burgett made articulable specific
observations about Appellant, including his demeanor, the odor of alcohol, and
a bulge in his waistband. Based on these observations, Officer Burgett
reasonably concluded, in light of his experience, that criminal activity was
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afoot, and that Appellant was involved in that activity. See Jones, supra;Cottman, supra. Thus, we agree with the trial court that police had
reasonable suspicion to conduct the investigatory detention here.
Further, Appellant’s alternative argument that the officers lacked
probable cause to arrest him for public drunkenness warrants no relief. In
Commonwealth v. Canning, 587 A.2d 330 (Pa.Super. 1991), police
responded to a radio call to investigate complaints that a stranger was pacing
back and forth on a neighbor’s porch. When the police officer arrived, he
observed the defendant wearing no shirt, shoes, or socks, pacing back and
forth on the neighbor’s front porch. Id. at 331. The defendant informed the
officer that he was looking for his car. Id. Because the defendant appeared
intoxicated and confused and had an odor of alcohol on his breath, the officer
decided to arrest the defendant for public intoxication. Id. A search incident
to that arrest revealed narcotics in the defendant’s pants pockets. Id.Although the defendant was not charged with public intoxication, this Court
determined that the police had probable cause to arrest the defendant for
public intoxication where the officer noticed an odor of alcohol on the
defendant’s breath and the defendant appeared both confused and
intoxicated. Id. at 332.
Instantly, the court explained that probable cause existed to arrest
Appellant for public drunkenness as follows:
Here, Appellant initially said something about a guy chasing
a girl. Burgett then noted that Appellant crouched over a
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couple of times, kept grabbing onto things to hold, stated
he had to urinate, had bloodshot eyes, and the odor of
alcohol emanated from his breath. Appellant exhibited signs
of intoxication that a layman would be familiar with, let
alone an experienced law enforcement officer. Consistent
with [Commonwealth v. Bennett, 124 A.3d 327(Pa.Super. 2015)2], Burgett recognized that Appellant’s
crouching over and grabbing onto things to hold was an
indicator of intoxication. So was Appellant’s need to urinate.
Moreover, Burgett saw that Appellant possessed a firearm,
and an intoxicated person in possession of a firearm
presents a danger to himself and others. Consistent with
Canning, the odor of alcohol on Appellant’s breath, his
bloodshot eyes, and his suspicious behavior also gave rise
to probable cause to arrest Appellant for public
drunkenness.
(Trial Court Opinion at 8).
The record supports the court’s finding that the officers had probable
cause to arrest Appellant for public drunkenness where Appellant appeared in
public intoxicated carrying a loaded firearm in his waistband.3 See R.
Williams, supra. Because the trial court’s factual findings are supported by
the record, the court’s suppression ruling was proper. See H. Williams,
supra.
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2In Bennett, this Court described the following as indicia of intoxication for
public drunkenness: stumbling and slurred speech, flailing arms about,
shouting at and arguing with police.
3 We disagree with Appellant’s contention that Officer Burgett’s observations
of something in Appellant’s waistband, Appellant crouching over, and
Appellant grabbing onto items to maintain his balance occurred after Appellant
was detained. (See Appellant’s Brief at 37). The record establishes that these
observations all occurred when Officer Burgett initially encountered Appellant
before the officer instructed Appellant to stop walking away from the police.
(See N.T. Suppression at 10).
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In his second issue, Appellant argues that the evidence was insufficient
to sustain his conviction for public drunkenness. Appellant contends that the
evidence adduced at trial failed to establish that Appellant was manifestly
under the influence of alcohol to the point of being a danger to himself and
others. Appellant maintains that the only evidence related to his intoxication
consisted of him having the odor of alcohol, bloodshot eyes, urinating himself,
crouching over, and placing his hand on a neighbor’s railing. Appellant
stresses that the record is devoid of any evidence that he appeared confused,
slurred his speech, staggered, stumbled, yelled, acted disruptive, or failed to
comply with any police instructions. Appellant concludes the evidence was
insufficient to sustain his public drunkenness conviction, and this Court must
vacate his conviction and judgment of sentence. We disagree.
When examining a challenge to the sufficiency of evidence:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In addition,
we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may
be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
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[trier] of fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe
all, part or none of the evidence.
Commonwealth v. Jackson, 215 A.3d 972, 980 (Pa.Super. 2019) (quoting
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal
denied, 613 Pa. 642, 32 A.3d 1275 (2011)).
The Crimes Code defines public drunkenness as follows:
A person is guilty of a summary offense if he appears in any
public place manifestly under the influence of alcohol or a
controlled substance…to the degree that he may endanger
himself or other persons or property, or annoy persons in
his vicinity.
18 Pa.C.S.A. § 5505. Indicia of intoxication include but are not limited to: the
offender’s actions and behavior, speech, lack of coordination and loss of
concentration, odor of alcohol, bloodshot eyes, demeanor, physical
appearance, and other physical signs of intoxication. Commonwealth v.
Segida, 604 Pa. 103, 116, 985 A.2d 871, 879 (2009). Generally, intoxication
is a condition within the understanding or powers of observation of ordinary
citizens. See Commonwealth v. Spencer, 888 A.2d 827 (Pa.Super. 2005).
See also Commonwealth v. Neiswonger, 488 A.2d 68 (Pa.Super. 1985)
(explaining officer may render opinion as to defendant’s state of intoxication).
In Bennett, supra, this Court held sufficient evidence existed to sustain
the defendant’s conviction for public drunkenness where the evidence
established that the defendant flailed his arms about, shouted at and argued
with both the security guard and the police, and was, on one occasion,
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jumping in and out of patrons’ cars. Id. This Court concluded that “[s]uch
activities may be properly classified as both annoying and dangerous.” Id. at
331.
Instantly, the court explained why sufficient evidence existed to sustain
Appellant’s conviction for public drunkenness as follows:
Burgett observed Appellant crouch over a couple of times,
keep grabbing onto things to hold, and state he had to
urinate. Appellant had bloodshot eyes and the odor of
alcohol emanating from his breath. Appellant urinated
himself after being taken into custody. Video from Burgett’s
body camera corroborated his testimony regarding
Appellant’s indicia of intoxication. Appellant appeared in a
public place manifestly under the influence of alcohol to the
degree that he may endanger himself or other persons or
property, or annoy persons in his vicinity. An intoxicated
person in possession of a firearm clearly presents significant
danger to himself or others as a result of impaired judgment
or coordination. Moreover, Appellant’s presence in such a
state on a residential street would no doubt alarm or annoy
others.
(Trial Court Opinion at 9-10).
We agree with the court’s analysis. Officer Burgett, who had seven
years of experience as a police officer, observed that Appellant exhibited the
following indicia of intoxication: Appellant had bloodshot eyes, an odor of
alcohol emanating from his breath, he kept grabbing onto things to hold,
crouched over a couple of times, and ultimately urinated himself. See
Segida, supra. Further, Appellant’s possession of a loaded firearm while
intoxicated posed a risk to those around Appellant. Viewed in the light most
favorable to the Commonwealth as verdict-winner, the evidence was sufficient
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J-A22034-21
to sustain Appellant’s conviction under Section 5505. See Jackson, supra.Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/03/2022
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