Com. v. Simpson, L. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
LANCE SIMPSON : No. 1158 EDA 2018
Appeal from the Order Entered March 12, 2018
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0004545-2017
BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED DECEMBER 11, 2018
The Commonwealth appeals from the order entered March 12, 2018, in
the Delaware County Court of Common Pleas, granting the pretrial motion to
suppress evidence filed by appellee, Lance Simpson.1 On appeal, the
Commonwealth argues the trial court erred when it concluded officers had no
probable cause to arrest Simpson for driving under the influence of alcohol
(“DUI”),2 and related charges. For the reasons below, we reverse the order
granting suppression of the evidence, and remand for further proceedings.
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1Pursuant to Pa.R.Crim.P. 311(d), the Commonwealth properly certified in its
notice of appeal that “the trial court’s order will terminate or substantially
handicap the prosecution.” Notice of Appeal, 4/10/2018.
2 75 Pa.C.S. § 3802(a)(1).
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The facts developed during the suppression hearing were summarized
by the trial court as follows:
[O]n April 14, 2017 around 11:51PM, there were three telephone
calls to 911 reporting an accident. Based upon those calls, the
911 center dispatched officers into Sector 2, Drexel Hill, for an
accident, a hit and run, in the area of Woodland Avenue and
[Burmont] Road. Upon arrival at the accident location a tire was
found in the street as well as gouge marks in the roadway. The
Court heard testimony that the gouge marks led north on
[Burmont] Road. The callers to 911 provided a description of a
silver pick-up truck missing a tire with sparks and flames coming
from the vehicle. None of the 911 callers identified the race or
gender of the individual driving the silver pick-up. The police
officers followed the gouge marks to [Simpson’s] driveway located
at 2226 Steele Road. In the driveway[,] the police officers located
a silver pick-up with heavy front end damage and with a missing
tire. The officers testified that they knew the residence and that
[Simpson] was known to drive a silver pick-up, as [he] was a
fellow police officer.
As Lieutenant [Louis] Panagoplos was en route to 2226
Steele Road, he testified that he was approached by a neighbor
who informed him “that I needed to check on [Simpson] to make
sure he was okay.” The neighbor informed the Lieutenant that
[Simpson] was “standing in the driveway looking at his vehicle.”
This Court heard the testimony of Mr. [Adam] Stevenson, a
neighbor of [Simpson] who spoke with one of the officers en route
to [Simpson’s] residence. Mr. Stevenson testified that the officer
stopped him and asked if the vehicle belonged to Mr. Stevenson
or if he knew whom the vehicle belonged to[.] Mr. Stevenson
informed the officer that “he didn’t want to know the answer to
that [question]. And I said it belonged to [Simpson].” According
to the testimony of Mr. Stevenson, the officer responded by
putting his head on the steering wheel and saying that he was
afraid that would be the answer. It was unclear to the Court if Mr.
Stevenson is the same person who spoke with Lieutenant
Panagoplos. This Court notes that if Mr. Stevenson is the same
person who spoke with Lieutenant Panagoplos, then there is a
discrepancy in the testimony between the two men. Mr.
Stevenson [did] not testify as to where he observed [Simpson]
and testified that the officer approached him whereas Lt.
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Panagoplos testif[ied] that a neighbor approached him and that
neighbor observed [Simpson] looking at the silver pick[-]up.
While at 2226 Steele Road, the officers saw no one in the
driveway or on the property. The officers observed the silver
pick[-]up backed into the driveway with the driver’s side front tire
missing, damage to the axel and damage on the curb. According
to the testimony of the officers, the lights of the residence were
on and they knew that the television on the first floor was on. The
officers approached and knocked on the front door of the
residence and there was no response. There was no testimony
from the officers if they were aware of anyone else on the property
or inside the residence. There was no testimony that [Simpson]
was observed in the vehicle. There was no testimony that [the]
motor vehicle was running or being operated at the time the silver
pick[-]up was observed in the driveway of 2226 Steele Road.
Again, this Court heard conflicting testimony. Officer
[William] Sides testified that he went to the rear of the residence
and saw [Simpson] there. However, the testimony from
Lieutenant Panagoplos was that he knocked on the front door of
the residence for several minutes before [Simpson] appeared
from the rear of the property. There was no testimony from
Lieutenant Panagoplos that [Simpson] came from the rear of the
property with Officer Sides.
Lieutenant Panagoplos was clear that [Simpson] did not
appear to be injured. It was also clear that immediately upon
seeing [Simpson], he was detained by the police officers and
transported from the scene. [Simpson] had no keys on his
person. There was no testimony that the registration of the motor
vehicle was identified as belonging to [Simpson].
The officers’ testimony that [Simpson] smelled of alcoholic
beverages, that his speech was slurred, that he had bloodshot
eyes, and that he was unsteady on his feet and had a staggering
gait was provided by observations made after [Simpson] was
detained.
Trial Court Opinion, 5/10/2018, at 2-5 (record citations omitted).
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Simpson was charged with DUI (general impairment) and the summary
offense of accidents involving damage to unattended property.3 On November
27, 2017, Simpson filed a pretrial motion to suppress, asserting he was
arrested without probable cause. The court conducted a suppression hearing
on March 1, 2018. Thereafter, on March 12, 2018, the trial court entered an
order granting Simpson’s motion, and suppressing “all physical evidence, of
which includes blood, as well as any statements and police observations after
[Simpson] was detained.” Order, 3/12/2018. The Commonwealth filed a
motion for reconsideration on March 22, 2018, which the court promptly
denied. This timely appeal followed.4
On appeal, the Commonwealth contends the trial court erred in
concluding there was no probable cause to arrest Simpson for suspicion of
DUI. See Commonwealth’s Brief at 7. Rather, the Commonwealth insists the
facts and circumstances known to the officers at the time of the arrest led to
the “practical, common-sense conclusion that it was probable [Simpson] was
driving his truck under the influence of alcohol while incapable of safe driving.”
Id. at 14.
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3 See 75 Pa.C.S. § 3745(a).
4On April 11, 2018, the trial court ordered Simpson to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On April 18,
2018, the court entered an amended order, directing the Commonwealth, who
was the appealing party, to file a concise statement. The Commonwealth
complied with the court’s directive and filed a concise statement on May 1,
2018.
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Our standard of review of an order granting a defendant’s motion to
suppress evidence is well-settled:
When the Commonwealth appeals 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.
The suppression court’s conclusions of law, however, are not
binding on an appellate court, whose duty is to determine if
the suppression court properly applied the law to the facts.
Commonwealth v. Miller, 2012 Pa. Super. 251, 56 A.3d
1276, 1278–79 (Pa. Super. 2012) (citations omitted). “Our
standard of review is restricted to establishing whether the
record supports the suppression court’s factual findings;
however, we maintain de novo review over the suppression
court’s legal conclusions.” Commonwealth v. Brown, 606
Pa. 198, 996 A.2d 473, 476 (2010) (citation omitted).
Commonwealth v. Korn, 139 A.3d 249, 252–253 (Pa. Super.
2016), appeal denied, 639 Pa. 157, 159 A.3d 933 (2016). “It is
within the suppression court’s sole province as factfinder to pass
on the credibility of witnesses and the weight to be given to their
testimony. The suppression court is free to believe all, some or
none of the evidence presented at the suppression hearing.”
Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa. Super.
2003) (citations omitted), appeal denied, 577 Pa. 701, 847 A.2d
58 (2004). Nevertheless, the suppression court’s conclusions of
law are not binding on an appellate court, and are subject to
plenary review. Commonwealth v. Johnson, 969 A.2d 565, 567
(Pa. Super. 2009) (citations omitted).
Commonwealth v. Byrd, 185 A.3d 1015, 1019 (Pa. Super. 2018).
It is axiomatic that “[a] police officer may detain an individual in order
to conduct an investigation” when the officer has reasonable suspicion the
individual is “is engaging in criminal conduct.” Commonwealth v. Young,
904 A.2d 947, 957 (Pa. Super. 2006), appeal denied, 916 A.2d 633 (Pa.
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2006). Reasonable suspicion is determined by consideration of the totality of
the circumstances, and the “reasonable inferences [the police officer] is
entitled to draw from the facts in light of his experience.” Id. (quotation
omitted). It is not limited to “only those facts that clearly indicate criminal
conduct[, but r]ather, even a combination of innocent facts, when taken
together, may warrant further investigation by the police officer.” Id.
(quotation omitted).
The officer may subsequently develop probable cause to place the
individual under arrest.
“Probable cause to arrest exists when the facts and circumstances
within the police officer’s knowledge and of which the officer has
reasonably trustworthy information are sufficient in themselves to
warrant a person of reasonable caution in the belief that an
offense has been committed by the person to be arrested.”
“Probable cause justifying a warrantless arrest is determined by
the ‘totality of the circumstances.’” Furthermore, “probable cause
does not involve certainties, but rather ‘the factual and practical
considerations of everyday life on which reasonable and prudent
[persons] act.’”
Commonwealth v. Williams, 941 A.2d 14, 27 (Pa. Super. 2008) (internal
citations omitted).
In the present case, the trial court concluded the officers did not have
probable cause to arrest Simpson for DUI. The court emphasized that while
it was “uncontroverted” the truck parked in Simpson’s driveway “was the
vehicle that was involved in a hit and run,” there was no testimony that
Simpson was the driver or “was in actual physical control of that silver pick-
up prior to his arrest[,]” nor was there any testimony he was the registered
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owner of the pick-up. Trial Court Opinion, 5/10/2018, at 7. The trial court
distinguished those cases in which a person, not observed actually driving a
vehicle, was, nevertheless, found to be the driver or in actual physical control
of a vehicle for purposes of a DUI conviction.5 See id. at 8 (citing cases).
The trial court summarized its findings as follows:
In this case, [Simpson] was not found asleep in the silver pick-up,
was not standing next to or near the pick-up, was not sitting in a
lane of traffic in the silver pick-up following an accident, nor was
he near the pick-up in a location (like a restaurant or other
establishment) which required him to drive to said location.
Rather, in this case [Simpson] was observed coming from the rear
of his residence. There was no testimony from any witness that
identified [Simpson] as the driver, there was no testimony that
[Simpson] held the keys to the silver pick[-]up in his hands.
The uncontroverted testimony in this case is that a silver
pick-up was involved in a hit and run, that the silver pick[-]up was
sitting in [Simpson’s] drive way, and that immediately upon
making contact with [Simpson] he was handcuffed, then simply
based upon the observations of his person, he was placed under
arrest for driving under the influence and transported to the
hospital. The uncontroverted testimony of the witnesses
presented did not establish the identity of the driver of the silver
pick-up. There was no investigation to determine whether or not
[Simpson] had been operating the motor vehicle and was involved
in a hit and run accident, there was no investigation to determine
if anyone else was in the residence, on the property or had been
in actual physical control of the motor vehicle or had operated the
motor vehicle. Based upon the relevant case law this Court did
not err in determining that there was no probable cause to arrest
[Simpson]. This Court further determines that when the police
entered [Simpson’s] property and immediately put [Simpson] in
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5 A person is guilty of DUI (general impairment) if he “drive[s], operate[s]
or [i]s in actual physical control of the movement of a vehicle after
imbibing a sufficient amount of alcohol such that the individual is rendered
incapable of safely driving, operating or being in actual physical control of the
movement of the vehicle.” 75 Pa.C.S. § 3802(a)(1) (emphasis supplied).
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handcuffs that he was arrested and not detained and that the
officers did not possess the requisite probable cause.
Id. at 8-9.
The Commonwealth contends, however, the trial court “misapplied by
the law providing for deferential review of police probable-cause
determinations.” Commonwealth’s Brief at 11 (footnote omitted).
Specifically, it insists the trial court failed to consider the following “compelling
circumstantial evidence[ - ] that a silver pick-up truck missing a tire fled from
a collision, police followed a trail gouged in the road by the tireless wheel to
[Simpson’s] driveway, and that they found the intoxicated [Simpson] there
with his damaged silver pick-up truck missing a tire.” Id. at 14. Based upon
this circumstantial evidence, the Commonwealth argues, “the police correctly
made a practical, common-sense conclusion that it was probable [Simpson]
was driving his truck under the influence of alcohol while incapable of safe
driving.” Id. We agree.
The trial court’s findings rely heavily on the court’s determination that
the officers conducted no investigation at the scene, but rather, immediately
placed Simpson in handcuffs and arrested him as soon as he appeared. See
Trial Court Opinion, 5/10/2018, at 8-9. The court emphasized the absence of
any testimony identifying Simpson as the driver of the pick-up, see id. at 7,
and stated the officer’s observations regarding Simpson’s apparent
intoxication (smell of alcohol, bloodshot eyes, slurred speech, unsteady gait),
were made only after Simpson was “detained.” Id. at 5. The clear implication
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in the court’s opinion, is that the officers arrested Simpson before even
determining whether he was intoxicated.
However, the testimony from the suppression hearing does not support
this sequence of events. In fact, upon our review of the transcript, we find no
mention of when, if at all, Simpson was handcuffed on the night in question.
Rather, both Officer Sides and Lieutenant Panagoplos testified that after
Simpson appeared from the rear of the home, he was “detained.” See N.T.,
3/1/2018, at 28-29, 50-51. Lieutenant Panagoplos stated that when Simpson
appeared, he asked Simpson if he was okay. See id. at 40. The lieutenant
testified:
At that point I observed him, I listened to his speech pattern. I
observed that his speech was slurred. I could smell an odor of an
alcoholic beverage coming from his person. And that he was
unsteady on his feet.
… [Simpson was a] little more dishelved than he would normally
be. He’s pretty clean-cut as you can see. And that night he
seemed to be a little just out of sorts.
Id. at 41-42. Based on his observations, Lieutenant Panagoplos concluded
Simpson “was intoxicated[ and] had driven the vehicle.” Id. at 42. Under
cross-examination, the lieutenant agreed to the following: (1) Officer Sides
detained Simpson when he appeared from the rear of the residence; (2) after
that time, the lieutenant “made the observations” regarding Simpson’s
purported intoxication; and (3) “at that point based on everything …
[Lieutenant Panagoplos] arrested [] Simpson for suspected DUI[.]” Id. at 50-
51. Under the relevant case law, the officers were permitted to briefly detain
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Simpson to investigate when they found his damaged pick-up truck in his
driveway just 15 to 20 minutes after the initial 911 call regarding the hit and
run.6 The testimony reveals the officers observed Simpson displayed signs of
intoxication as soon as he appeared before them. See N.T., 41-42, 50-51.
Moreover, there was no testimony Simpson was immediately put in handcuffs
and arrested, before he displayed signs of intoxication.
While there was no direct evidence presented that Simpson was driving
the pick-up at the time of the collision, the circumstantial evidence was
sufficient to supply probable cause for his arrest. Here, within minutes of the
hit and run, Officer Sides followed the gouge marks in the road from the
accident scene to Simpson’s nearby residence. Officer Sides knew Simpson,
a fellow officer, lived there and drove a silver pick-up. See id. at 36. In fact,
as soon as he recognized the vehicle was Simpson’s, Officer Sides “notified
[his] supervisor,” Lieutenant Panagoplos. Id. at 22. See id. at 26 (Officer
Sides explained, “[W]hen I saw the vehicle I recognized it and backed up and
notified my supervisor.”). As the lieutenant arrived, a neighbor of Simpson’s
told the officer that he needed to check on Simpson because Simpson was
standing in his driveway looking at his vehicle. When the officers finally
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6 See N.T., 3/1/2018, at 42-43. Although the trial court notes there was no
testimony Simpson was the registered owner of the pick-up truck, Lieutenant
Panagoplos testified that when he met Officer Sides near the scene, the officer
told him both the vehicle and the residence belonged to Simpson. See id. at
36. The lieutenant also stated a neighbor of Simpson’s approached him, and
told him he needed to “check on [Simpson]” because he was “standing in the
driveway looking at his vehicle.” Id. at 37.
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observed Simpson, he displayed signs of intoxication. Under the totality of
the circumstances – including the fact that the officers knew Simpson lived
at that address and drove a silver pick-up, and considering the neighbor’s
concern for Simpson’s welfare - the officers had probable cause to believe
Simpson was the person who was driving the vehicle at the time of the
accident. It is important to emphasize that “probable cause does not require
certainty, but rather exists when criminality is one reasonable inference, not
necessarily even the most likely inference.” Commonwealth v. Salter, 121
A.3d 987, 994 (Pa. Super. 2015).
The cases cited by the trial court in its opinion all involve challenges to
the sufficiency of the evidence, where the standard is proof beyond a
reasonable doubt. See Commonwealth v. Toland, 995 A.2d 1242 (Pa.
Super. 2010), appeal denied, 29 A.3d 797 (Pa. 2011); Commonwealth v.
Brotherson, 888 A.2d 901 (Pa. Super. 2005), appeal denied, 899 A.2d 1121
(Pa. 2006); Commonwealth v. Williams, 871 A.2d 254 (Pa. Super. 2005);
Commonwealth v. Byers, 650 A.2d 468 (Pa. Super. 1994). Indeed, if this
were a trial, and Simpson was challenging the sufficiency of the evidence, we
would conclude the evidence did not demonstrate, beyond a reasonable doubt,
that he was the driver of the vehicle. However, presently, the Commonwealth
is appealing the court’s pretrial order granting suppression of the evidence
based upon a lack of probable cause for Simpson’s arrest. As stated above,
the standard for determining probable cause is whether “the facts and
circumstances within the police officer’s knowledge and of which the officer
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has reasonably trustworthy information are sufficient in themselves to warrant
a person of reasonable caution in the belief that an offense has been
committed by the person to be arrested.” Williams, supra, 941 A.2d at 27.
We conclude the evidence presented at the suppression hearing met that
standard.
Accordingly, we reverse the order granting Simpson’s suppression
motion, and remand for further proceedings.
Order reversed. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/11/18
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