Com. v. Carlson, L. ( 2023 )

J-S06029-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LORNA ELIZABETH CARLSON :
:
Appellant : No. 935 MDA 2022
Appeal from the Judgment of Sentence Entered June 23, 2022
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0001208-2021
BEFORE: STABILE, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY NICHOLS, J.: FILED: MAY 22, 2023
Appellant Lorna Elizabeth Carlson appeals from the judgment of
sentence imposed after she was found guilty of two counts of driving under
the influence (DUI). Appellant contends that the trial court erred when it
denied her motion to suppress. We affirm.
The trial court summarized the relevant facts of this matter as follows:
Officer Thomas Wambold testified at [Appellant’s] suppression
hearing that on July 3, 2020, he was driving in his patrol car in
Cumberland County when he observed Appellant drive past him in
the opposite direction. Appellant had a “lethargic gaze to her,”
and he had to “scoot over” in the road to let her pass by him
without striking his vehicle on the narrow street. Officer Wambold
described [Appellant] as appearing “almost like she didn’t even
notice [him] there,” explaining that she did not slow down to pass
by and held the unusual gaze which appeared to him like she was
struggling to keep her eyes open. He said his vehicle and
Appellant’s vehicle were only about a foot apart from each other,
so he could see her very closely. He said in his experience,
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* Former Justice specially assigned to the Superior Court.
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intoxicated drivers appear this way with a slouch, head tilted to
the side, and a thousand-yard stare, though he did not know
whether she was impaired, having some other type of medical
issue, or if she was falling asleep at the wheel. Officer Wambold,
admittedly wanting to investigate, turned his vehicle around,
followed her, and observed her park her vehicle which he said took
several attempts and included her vehicle going over the curb and
abruptly coming back down on the road and finally parking over a
foot from the curb. He said he did not turn on his lights or sirens,
nor yell out to her or indicate in any way that she needed to pull
over; Appellant was parking her vehicle unprompted. Officer
Wambold was alone, as was Appellant. He said he attempted a
mere encounter, whereby he stopped his vehicle in the road as
Appellant was getting out of her vehicle unprompted[,] and he
approached her on foot without any show of authority. Officer
Wambold testified that as he approached Appellant while
Appellant was exiting her vehicle, he said, “how are you doing?
Are you ok?” As he approached, the officer said he immediately
smelled alcohol on her breath and at that point called out a
“suspicious vehicle” over his radio on his person. He described
the smell of alcohol and his calling in a “suspicious vehicle” as
simultaneous, explaining[:]
I smelled the alcohol pretty much -- it was very quickly. It
was just as she was getting out of the vehicle, I could smell
the overwhelming strong odor of an alcoholic beverage.
The officer testified that while making the radio call, he also
observed unsteady coordination in Appellant “like a stagger.”
Officer Wambold’s motor vehicle recording, which does not
capture sound for the relevant portion, is consistent with his
testimony, showing Officer Wambold walk up to Appellant after
she has already parked and as she is standing outside her vehicle.
Appellant closes her door and walks toward Officer Wambold and
gestures toward her vehicle as the pair speak until, a few seconds
later, Officer Wambold walks back toward his vehicle. At that
time, he turns on his emergency lights for the first time.
Trial Ct. Op., 9/7/22, at 2-4 (footnotes omitted and some formatting altered).
The record reflects that Appellant performed poorly on field sobriety tests, and
Appellant was taken for a blood draw which revealed her blood alcohol
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concentration was .244% within two hours of driving. See Complaint, 7/3/20,
at 2. Appellant was charged with DUI (general impairment), DUI (highest rate
of alcohol), and careless driving.1 Trial Ct. Op., 9/7/22, at 1.
On August 19, 2022, Appellant filed her omnibus pretrial motion
asserting that the traffic stop was unlawful and arguing that any evidence
gathered from the traffic stop must be suppressed. Omnibus Mot., 8/19/22,
at 5-11 (unnumbered). The trial court held a hearing on October 5, 2021,
and took the matter under advisement. See N.T., 10/5/21, at 52.
On February 11, 2022, the trial court denied Appellant’s motion to
suppress, and on April 13, 2022, the trial court held a trial on stipulated facts.
On April 25, 2022, the trial court found Appellant guilty of DUI (general
impairment) and DUI (highest rate of alcohol), and not guilty of careless
driving. See Trial Ct. Op., 9/7/22, at 1. On May 31, 2022, the trial court
concluded that Appellant’s DUI convictions merged for sentencing purposes,
and the court sentenced Appellant on the count of DUI (highest rate of alcohol)
to a term of seventy-two hours to six months of incarceration, a $1,000.00
fine, and court costs and fees. See Order, 5/31/22, at 1. On June 23, 2022,
the trial court filed an amended sentencing order which modified Appellant’s
conditions of bail and added drug and alcohol testing. Order, 6/23/22.
____________________________________________
1 75 Pa.C.S. §§ 3802(a)(1); 3802(c); and 3714.
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Appellant filed a timely notice of appeal, and both the trial court and Appellant
complied with Pa.R.A.P. 1925.
On appeal, Appellant raises the following issue:
Whether the honorable trial court erred in concluding that the
officer’s initial interaction with [Appellant] was a mere encounter.
More specifically, whether [Appellant] was subjected to an
investigative detention during the initial interaction thereby
requiring reasonable suspicion?
Appellant’s Brief at 6 (formatting altered).
Appellant argues that the trial court erred in denying her motion to
suppress. Appellant’s Brief at 15. Specifically, Appellant contends that the
trial court erred when it concluded that Officer Wambold’s initial interaction
with Appellant was a mere encounter, and she instead claims that the officer
conducted an investigative detention that was not supported by reasonable
suspicion. Id. at 15-19, 22.
“Our standard of review in addressing a challenge to the denial of a
suppression motion is limited to determining whether the suppression court’s
factual findings are supported by the record and whether the legal conclusions
drawn from those facts are correct.” Commonwealth v. Jones, 988 A.2d
649, 654 (Pa. 2010).
Where the suppression court’s factual findings are supported by
the record, we are bound by these findings and may reverse only
if the court’s legal conclusions are erroneous. The suppression
court’s legal conclusions are not binding on an appellate court,
whose duty it is to determine if the suppression court properly
applied the law to the facts. Thus, the conclusions of law of the
courts below are subject to our plenary review.
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Commonwealth v. Shreffler, 201 A.3d 757, 763 (Pa. Super. 2018) (citation
omitted).
It is well settled that
Article I, § 8 of the Pennsylvania Constitution and the Fourth
Amendment to the United States Constitution both protect the
people from unreasonable searches and seizures. Jurisprudence
arising under both charters has led to the development of three
categories of interactions between citizens and police. The first,
a “mere encounter,” does not require any level of suspicion or
carry any official compulsion to stop or respond. The second, an
“investigative detention,” permits the temporary detention of an
individual if supported by reasonable suspicion. The third is an
arrest or custodial detention, which must be supported by
probable cause.
Commonwealth v. Lyles, 97 A.3d 298, 302 (Pa. 2014) (citations omitted).
No bright lines separate these types of encounters, but the United
States Supreme Court has established an objective test by which
courts may ascertain whether a seizure has occurred to elevate
the interaction beyond a mere encounter. The test, often referred
to as the “free to leave test,” requires the court to determine
“whether, taking into account all of the circumstances surrounding
the encounter, the police conduct would ‘have communicated to a
reasonable person that he was not at liberty to ignore the police
presence and go about his business.’” [Florida v.] Bostick, 501
U.S. [429,] at 437 [(1991)]. “Whenever a police officer accosts
an individual and restrains his freedom to walk away, he has
‘seized’ that person.” Terry [v. Ohio,] 392 U.S. [1,] 16 [1968)].
Commonwealth v. Adams, 205 A.3d 1195, 1200 (Pa. 2019) (some citations
omitted and formatting altered). “In evaluating the level of interaction, courts
conduct an objective examination of the totality of the surrounding
circumstances.” Lyles, 97 A.3d at 302 (citation omitted).
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In Commonwealth v. Au, 42 A.3d 1002 (Pa. 2012), our Supreme
Court addressed a situation with similar facts and concluded that the initial
interaction between law enforcement and a defendant constituted a mere
encounter. In Au, during the early morning hours, a police officer witnessed
a car parked at a business that was closed at the time. The officer concluded
that this was unusual, and he entered the parking lot and parked his car
behind the vehicle illuminating the passenger side of the car, but not blocking
the vehicle from exiting the parking lot. Additionally, the officer did not
activate his emergency lights. The officer then exited his patrol vehicle and
approached the parked car on foot. The officer observed that there were six
people in the car and asked the defendant, who was the driver of the car,
“what’s going on[?]” Id. at 1003. The driver replied that they were “hanging
out.” Id. The officer determined that the passengers in the backseat of the
vehicle were under eighteen years old, and he asked the driver for
identification. The driver then opened the glove compartment in the car and
revealed two baggies of marijuana. There was no evidence of criminal activity
or a violation of the Motor Vehicle Code prior to the driver opening the glove
compartment. Id. at 1004. Following a search of the car, the police
discovered additional controlled substances. The police arrested the driver,
and the driver filed a motion to suppress evidence of the controlled
substances. The trial court concluded that the initial interaction between the
officer and the driver was an investigative detention, which was unsupported
by reasonable suspicion, and the trial court suppressed the evidence. Id.
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On direct appeal, this Court affirmed the trial court’s ruling. See
Commonwealth v. Au, 986 A.2d 864 (Pa. Super. 2009) (en banc). The
Pennsylvania Supreme Court granted allowance of appeal, and after review,
it reversed. The Supreme Court held that the police officer’s interaction with
the driver was a mere encounter and explained, in relevant part, as follows:
In the present case, the arresting officer’s unrebutted testimony
indicates that he did not: activate the emergency lights on his
vehicle; position his vehicle so as to block the car that [the driver]
was seated in from exiting the parking lot; brandish his weapon;
make an intimidating movement or overwhelming show of force;
make a threat or a command; or speak in an authoritative tone.
* * *
Pursuant to governing Fourth Amendment law, we hold that the
arresting officer’s request for identification did not transform his
encounter with [the driver] into an unconstitutional investigatory
detention.
Au, 42 A.3d at 1008–09 (Pa. 2012) (citations omitted and formatting altered).
As stated previously, in this case, the trial court concluded that the
interaction between Officer Wambold and Appellant was a mere encounter.
Trial Ct. Op., 9/7/22, at 4. The trial court reviewed the evidence and explained
that Officer Wambold did not conduct a traffic stop, and it noted that the
“pivotal” inquiry was whether “a reasonable [person], innocent of any crime,”
would believe that they were being restrained. See id. at 4 (citing
Commonwealth v. Livingstone, 174 A.3d 609, 621 (Pa. 2017) (quoting
Commonwealth v. Jones, 378 A.2d 835, 840 (Pa. 1977)).
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The trial court explained that Officer Wambold testified that when he
first saw Appellant driving, she had a “lethargic gaze,” appeared to be
struggling to keep her eyes open, and had a “thousand-yard stare,” causing
the officer to be concerned that Appellant may be impaired or experiencing a
medical emergency. Trial Ct. Op., 9/7/22, at 2. Indeed, the trial court
acknowledged that the officer wanted to investigate, and the officer began to
follow Appellant’s car. See id. Appellant then parked her car, without being
prompted or directed by the officer, and when the officer approached
Appellant he smelled the odor of alcohol. See id. at 2-3. The trial court
concluded that Appellant was not restrained and that the initial interaction was
a mere encounter.
After review, we discern no error. Although Officer Wambold testified
that he suspected that Appellant may be impaired due to her appearance and
expressed his subjective intent to investigate, those factors alone do not raise
the level of the initial interaction to an investigative detention as that
determination is not based on any single factor, but rather on the totality of
the circumstances. See Lyles, 97 A.3d at 302-03. The Lyles Court
explained:
The totality-of-the-circumstances test is ultimately centered on
whether the suspect has in some way been restrained by physical
force or show of coercive authority. Under this test, no single
factor controls the ultimate conclusion as to whether a seizure
occurred—to guide the inquiry, the United States Supreme Court
and this Court have employed an objective test entailing a
determination of whether a reasonable person would have felt free
to leave or otherwise terminate the encounter.
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Id. (citing Michigan v. Chesternut, 486 U.S. 567, 573–74 (1988);
Commonwealth v. Strickler, 757 A.2d 884, 889 (Pa. 2000)).
Instantly, Officer Wambold turned his car to follow Appellant after she
drove past him with a “lethargic gaze,” slumped back, without slowing down
on a tight street such that the officer had to move his vehicle over on the road
to avoid hitting Appellant’s vehicle. He saw Appellant drive over a 4.5-inch
curb while attempting to park, and she parked more than 12 inches from the
curb. Trial Ct. Op., 9/7/22, at 2-3, 5. The trial court further considered that
Officer Wambold parked behind Appellant’s car but did not block her exit. He
was the only law enforcement officer present, it was daylight, and he did not
activate his emergency lights or siren prior to speaking to Appellant. See id.Officer Wambold exited his vehicle, walked toward Appellant’s car, and he
asked Appellant if she was “ok.” Id. The officer did not make any show of
authority or force, nor did he make “any demands on Appellant,” or request
Appellant to do “anything at all.” Id. Appellant was not restrained and was
free to leave. Then, voluntarily, without any prompting, Appellant exited her
car, walked toward the officer, and engaged in conversation. See id. It was
at that point that Officer Wambold smelled alcohol on Appellant’s breath and
then used his radio to report the encounter as an investigation of a suspicious
vehicle. Officer Wambold witnessed Appellant stagger, and he then walked
back to his patrol vehicle and activated the emergency lights. See id. at 3,
4-5.
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On this record, we agree with the trial court that based on Appellant’s
observed behavior, Officer Wambold believed that Appellant might have been
impaired, experiencing a medical emergency, or was falling asleep at the
wheel. Accordingly, he did not need to demonstrate a level of suspicion to
approach Appellant to determine her condition and if she needed assistance.
See Commonwealth v. Williams, 73 A.3d 609, 613 (Pa. Super. 2013)
(explaining that police need no level of suspicion to approach an individual
and initiate a mere encounter or request for information). Therefore,
considering the totality of the circumstances, Officer Wambold’s initial
interaction with Appellant was a mere encounter. As the trial court noted,
after Officer Wambold smelled alcohol on Appellant, and observed further
behavior of Appellant including her staggering walk, he radioed that he was
investigating a suspicious vehicle and activated his emergency lights and
Appellant was subsequently detained for suspicion of DUI. See id. at 4, 5, 6.
On this record, we find Appellant’s arguments challenging the lawfulness of
the traffic stop as meritless and no relief is due. For these reasons, based on
the totality of the circumstances of this case, we conclude that the trial court’s
denial of Appellant’s suppression motion was supported by the record and free
of legal error, therefore we affirm Appellant’s judgment of sentence. See
Shreffler, 201 A.3d at 763; Lyles, 97 A.3d at 303.
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Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/2023
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