Com. v. Ramey, L., Jr. ( 2021 )

J-S22042-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LANNY LEE RAMEY JR. :
:
Appellant : No. 186 MDA 2021
Appeal from the Judgment of Sentence Entered February 4, 2021
In the Court of Common Pleas of Snyder County Criminal Division at
No(s): CP-55-CR-0000108-2020
BEFORE: PANELLA, P.J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: AUGUST 9, 2021
Lanny Lee Ramey Jr. (Ramey) appeals from the judgment of sentence
imposed in the Court of Common Pleas of Snyder County (trial court) after his
bench conviction for driving under the influence (DUI)-general impairment,
second offense, and DUI-highest rate-second offense.1 He challenges the
denial of his motion to suppress. We affirm.
We take the following factual background and procedural history from
the trial court’s March 29, 2021 opinion and our independent review of the
record.
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* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S. §§ 3802(a)(1) and 3802(c). The Commonwealth withdrew the
charges of careless driving, 75 Pa.C.S. § 3714(a), and reckless driving, 75
Pa.C.S. § 3736(a).
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I.
On December 31, 2019, Trooper Rodney Shoeman (Trooper Shoeman)
of the Pennsylvania State Police (PSP) filed a criminal complaint against
Ramey for the above charges related to an incident that occurred at
approximately 3:00 A.M. on November 9, 2019, in Monroe Township, Snyder
County. After a preliminary hearing bound over all counts for trial, Ramey
filed an omnibus pre-trial motion in which he sought to suppress the evidence
based on his allegedly unconstitutional stop and seizure.
A.
At the suppression hearing, Trooper Shoeman was the only witness. He
testified that on the night in question, he and his partner2 were dispatched to
the Monroe Township Sheetz Gas Station and Convenience Store based on the
report of a male passed out in the driver’s seat of his vehicle, partially outside
of the open driver’s side door of his vehicle. Dispatch provided the trooper
with the make, model, color and license plate number of the subject vehicle
as had been reported but did not inform the trooper who called in the tip.
When he approached the Sheetz, Trooper Shoeman saw a vehicle matching
the description provided by Dispatch pulling south onto Routes 11 and 15.
The operator of the vehicle did not commit any traffic violations. As the
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2 Trooper Trey Geyer. (See Affidavit of Probable Cause, 12/31/19).
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trooper turned around in the parking lot, several people began pointing him
toward the subject vehicle.
Trooper Shoeman immediately left the lot and travelled in the direction
he had seen the vehicle headed. Approximately ten minutes later, he
identified the vehicle pulled off the road and parked in a closed Weis Markets
lot about one-and-a-half miles away. The car was running with its headlights
illuminated. He pulled behind the car to confirm it was consistent with the
information provided by Dispatch. Although the license plate number provided
by Dispatch was ZFK-1784 and the plate number on the vehicle had the
numbers in a slightly different order, ZFK-7814, the information matched. As
the car moved out of the parking space, Trooper Shoeman activated his
emergency lights and gave verbal commands from his cruiser to the driver of
the vehicle to stop and turn off his engine.
The two troopers approached the vehicle on foot. Ramey was the only
occupant of the vehicle. Trooper Shoeman immediately smelled the strong
odor of alcohol and saw a case of Michelob Ultra in the passenger seat. Ramey
volunteered that he had been drinking and wanted the troopers to take him
to the hospital because he knew how the system worked. The troopers
observed that Ramey’s speech was slow and sluggish. Ramey refused to
submit to a preliminary breath test (PBT) or to attempt field sobriety tests.
Trooper Shoeman placed him under arrest for DUI. (See N.T. Suppression
Hearing, 6/09/20, at 5-16).
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Ramey obtained a copy of the video recording from the troopers’ vehicle
(MVR) and admitted it into evidence at the suppression hearing. The court
watched the video in chambers. Ramey did not testify on his own behalf.
The Court denied Ramey’s motion to suppress, explaining:
The Court finds the troopers received information that an
individual was passed out in a vehicle at the Sheetz department
store, received information that a door was open and an individual
was passed out. Law enforcement officers have a duty and an
obligation to investigate situations where it is possible that
someone is ill or not feeling well, as well as possible violations of
the law, in this case, driving under the influence. He received
information regarding the vehicle. They observed the vehicle in
an establishment of a closed business at three o’clock in the
morning. They stopped the vehicle, whether they suspected
Driving Under the Influence or whether the [driver] was ill or
having health problems. If an individual was having health
problems where it would cause them to pass out and were
attempting to get home, I would expect troopers to investigate.
In this case, the Court finds the troopers had reasonable suspicion
to stop the vehicle. It was obvious from the MVR that—and
[Ramey]’s own unsolicited statements that he was under the
influence of alcohol—the Court finds the stop was reasonable, that
there was reasonable suspicion. The troopers then had probable
cause to arrest, [Ramey] was transported, and therefore the
resulting evidence and information gathered by the troopers is
admissible.
(See id. at 18-19).
B.
On November 6, 2020, after a stipulated bench trial, the trial court found
Ramey guilty of the two DUI counts. On February 4, 2021, the court
sentenced him to five years of restrictive probation, with the first year to be
served in the Snyder County Prison. Ramey timely appealed on February 8,
2021, and the trial court ordered him to a file a statement of errors complained
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of on appeal pursuant to Rule 1925(b). See Pa.R.A.P. 1925(b). On March
29, 2021, the trial court filed a Rule 1925(a) opinion in which it noted that
Ramey failed to file a statement of errors,3 but assumed that Ramey was
appealing the denial of his suppression motion. Upon receiving the trial court’s
opinion, Ramey filed a motion to file a Rule 1925(b) statement nunc pro tunc.
The Commonwealth did not object to Ramey’s motion and the trial court
granted it. The court filed an amended opinion on April 28, 2021, in which it
addressed the issues raised in the nunc pro tunc Rule 1925(b) statement.4
Ramey raises one issue on appeal: “Whether the Suppression Court
erred by denying the defense motion to suppress evidence from [his]
unconstitutional seizure … on the basis that the police had a reasonable
suspicion to institute the seizure and/or that the seizure was constitutionally
permissible under the community caretaker doctrine?” (Ramey’s Brief, at 4).5
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3 Ramey’s counsel represents that he did not receive a copy of the 1925(b)
order.
4 Because the trial court addressed the claims raised in the untimely Rule
1925(b) filing, we will address Ramey’s appellate issue and need not address
his allegation that he did not receive a copy of the trial court’s order directing
him to file a statement of errors. See Commonwealth v. Brown, 145 A.3d
184, 186 (Pa. Super. 2016), appeal denied, 165 A.3d 892 (Pa. 2017)
(“[W]here the trial court addresses the issues raised in an untimely Rule
1925(b) statement, we … may address the issues on their merits.”) (citation
omitted).
5 It is well-settled that:
(Footnote Continued Next Page)
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II.
Ramey argues that the traffic stop in this case was not supported by
reasonable suspicion nor was it constitutional under the community caretaker
doctrine because the police did not observe any traffic violations, the suspect
vehicle had a different license plate number than that reported to Dispatch,
and they had no specific and articulable facts that he needed medical
assistance. (See id. at 11).
A.
“A warrantless seizure is presumptively unreasonable under the Fourth
Amendment, subject to a few specifically established, well-delineated
exceptions.” Commonwealth v. Chase, 960 A.2d 108, 113 (Pa. 2008); see
also Terry v. Ohio, 392 U.S. 1 (1968) (same). Our jurisprudence delineates
interactions between police and citizens into three levels.
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Our standard of review in addressing a challenge to a trial
court’s denial of a motion to suppress is limited to determining
whether the factual findings are supported by the record and
whether the legal conclusions drawn from those facts are correct.
Because the prosecution prevailed in the suppression court, we
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 factual findings of the suppression court, we are
bound by those facts and may reverse only if the legal conclusions
drawn from them are in error.
Commonwealth v. Bell, 871 A.2d 267, 271 (Pa. Super. 2005), appeal
denied, 882 A.2d 1004 (Pa. 2005) (citations omitted).
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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).
In this case, the Commonwealth concedes that Ramey was subject to a
custodial detention requiring reasonable suspicion to be constitutional because
once Trooper Shoeman activated his emergency lights and directed Ramey to
stop his vehicle, Ramey was subject to an investigatory detention. See
Commonwealth v. Livingstone, 174 A.3d 609, 621 (Pa. 2017). The issue
then becomes whether Trooper Shoeman had reasonable suspicion to stop
Ramey’s vehicle.
An investigatory stop, which subjects a suspect to a stop and a
period of detention but does not involve such coercive conditions
as to constitute an arrest, requires a reasonable suspicion that
criminal activity is afoot. Reasonable suspicion depends upon
both the content of the information possessed by the police and
its degree of reliability. Thus, quantity and quality of information
are considered when assessing the totality of the circumstances.
If information has a low degree of reliability, then more
information is required to establish reasonable suspicion.
Commonwealth v. Wimbush, 750 A.2d 807, 811 (Pa. 2000) (citations
omitted). An officer has “reasonable suspicion” of criminal activity or a
violation of the Vehicle Code where he can articulate “specific observations
which, in conjunction with reasonable inferences derived from these
observations led him reasonably to conclude, in light of his experience, that
criminal activity was afoot and the person he stopped was involved in that
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activity.” Commonwealth v. Fulton, 921 A.2d 1239, 1243 (Pa. Super.
2007), appeal denied,934 A.2d 72 (Pa. 2007) (citation omitted).
Although Ramey correctly points out that he was never seen violating
the Traffic Code prior to the stop in question, a violation is not necessary to
establish the legality of a stop for the purposes of investigating a DUI:
To have reasonable suspicion, police officers need not personally
observe the illegal or suspicious conduct, but may rely upon the
information of third parties, including “tips” from citizens. … While
the reasonableness of official suspicion must be measured by what
the officers knew before they conducted their search,
Pennsylvania law...permits a vehicle stop based upon a radio
bulletin if evidence is offered at the suppression hearing to
establish reasonable suspicion.
Commonwealth v. Barber, 889 A.2d 587, 593-94 (Pa. Super. 2005)
(citations and most quotation marks omitted). “For a stop to be valid,
someone in the police department must possess sufficient information to give
rise to reasonable suspicion. The officer with the reasonable suspicion, usually
the dispatcher, need not convey all of this background information to the
officer who actually effectuates the stop.” Id. (citation and brackets omitted).
Trooper Shoeman testified at the suppression hearing that at
approximately 3:00 A.M., Dispatch provided information that an individual had
advised that a male was passed out in the driver’s seat of a vehicle, hanging
partially out of the open door. Although the bulletin did not provide the name
of the informing witness, evidence was presented at the suppression hearing
that it was the Sheetz manager. Although Trooper Shoeman did not
personally observe this behavior and saw the vehicle drive out of the Sheetz
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parking lot without incident, he located it approximately a mile away pulled
off the road into the parking lot of a closed Weis Markets with its lights on and
engine running. When police pulled behind the vehicle, it began to drive off.
Based on the foregoing, we conclude that Ramey’s suspicious behavior,
i.e., passing out in the driver’s side of his vehicle in the Sheetz parking lot at
approximately 3:00 A.M., parking approximately one mile away in the parking
lot of a closed grocery store, and pulling away upon seeing police approach,
support the court’s finding that Trooper Shoeman had reasonable suspicion to
effectuate a stop of Ramey’s vehicle. See Bell, 871 A.2d at 271.6
Moreover, even assuming arguendo that Trooper Shoeman lacked
reasonable suspicion of DUI, he properly stopped Ramey’s vehicle in his role
as a public servant and community caretaker.
B.
Ramey argues that the public servant exception does not apply because
there are no specific, articulable facts that would suggest he needed
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6 Ramey argues that any suspicion that could have arisen from the Sheetz
manager’s tip was negated because the license plate number provided by the
Sheetz manager had some inverted numbers. (See Ramey’s Brief, at 11);
(Ramey’s Reply Brief, at 5-7). This is not persuasive. As Trooper Shoeman
testified, he observed the vehicle, which matched the color, make and model
identified by the manager, both at the Sheetz and Weis Markets. Although
the numbers were reordered on the license plate, the letters were exact. (N.T.
Hearing, at 7, 10). We are not persuaded that the Sheetz manager’s
reordering of the numbers on the vehicle at 3:00 A.M. somehow “negat[ed]
any suspicion that could have arisen from the tip.” (Ramey’s Reply Brief, at
7).
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assistance other than the report that he was unconscious in the Sheetz parking
lot. (See Ramey’s Brief, at 21).
In Livingstone, 174 A.3d at 609, the Pennsylvania Supreme Court
held:
[I]n order for a seizure to be justified under the public
servant exception to the warrant requirement under the
community caretaking doctrine, the officer must point to specific,
objective, and articulable facts which would reasonably suggest to
an experienced officer that assistance was needed; the police
action must be independent from the detection, investigation, and
acquisition of criminal evidence; and, based on a consideration of
the surrounding circumstances, the action taken by police must
be tailored to rendering assistance or mitigating the peril.
Livingstone, 174 A.3d at 637. “We are not suggesting, however, that an
officer’s contemporaneous subjective concerns regarding criminal activity will
preclude a finding that a seizure is valid under the community caretaking
function.” Id. at 636
In support of his argument that the community caretaking doctrine does
not apply, Ramey relies on this Court’s decision in Commonwealth v.
McQuaid, 2019 WL 473667, unpublished memorandum, at *1 (Pa. Super.
filed Feb. 7, 2019). (See Ramey’s Brief, at 23-27).
We first observe that unpublished memoranda filed prior to May 1, 2019,
have no precedential value and citing to them violates our Internal Operating
Procedures. See Commonwealth v. Olson, 179 A.3d 1134, 1138 (Pa.
Super. 2018), aff’d, 179 A.3d 1134 (Pa. 2019); P.S. Super. Ct. I.O.P.
§ 65.37(B). Without providing any legal authority, Ramey baldly maintains
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that we should ignore the mandatory language of Internal Operating
Procedure 65.37 because McQuaid was filed on February 7, 2019, only
months before the May 1, 2019 date. We decline to do so. Moreover,
McQuaid, although factually similar, is distinguishable.
In McQuaid, a police officer received a dispatch for an unconscious male
in the driver’s seat of his vehicle in a Wendy’s Restaurant parking lot. Upon
arriving at the scene two to three minutes later, the subject vehicle was no
longer present. However, the officer observed a vehicle matching its
description exiting a gas station across the street. The officer activated his
overhead lights and stopped the vehicle to check on the driver’s well-being
based on the information in the dispatch. While speaking with the defendant,
the police officer observed signs of intoxication and he ultimately arrested him
for DUI. At no time did the officer observe any motor vehicle violations. The
trial court denied the defendant’s motion to suppress evidence seized as a
result of the stop. See McQuaid, 2019 WL 473667, at *1.
On appeal, we found that the above evidence adduced at the
suppression hearing did not support reasonable suspicion and that the public
servant exception of the community caretaker doctrine did not apply because:
Based on the [above facts], … any perceived reason to check
on the well-being of an unconscious individual was nullified upon
[the officer] observing that Appellant was conscious and driving
without committing any motor vehicle violations. Simply stated,
there were no facts that [the officer] could point to suggesting
that Appellant was in need of assistance.
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Id. at *4.7
Similarly, here, Trooper Shoeman had information from Dispatch that
an individual was passed out and partially hanging out of the open door of his
vehicle in the Sheetz parking lot. Upon reporting to the scene, he saw Ramey
exit the Sheetz parking lot without committing any traffic violations. However,
unlike in McQuaid, when the trooper located the subject vehicle ten minutes
later, it was pulled off the road parked in the lot of a closed grocery store with
the engine running and lights illuminated. It was only after Trooper
Shoeman’s vehicle pulled behind Ramey that he started to exit the Weis
Markets lot.
These circumstances, “reasonably suggest to an experienced officer that
assistance was needed.” Livingstone, 174 A.3d at 636-37. As stated by the
trial court, “[l]aw enforcement officers have a duty and an obligation to
investigate situations where it is possible that someone is ill or not feeling
well[.] … If an individual was having health problems where it would cause
them to pass out and were attempting to get home, I would expect troopers
to investigate.” (N.T. Hearing, at 18-19). In other words, it was reasonable
for Trooper Shoeman to investigate why Ramey, who had been unconscious
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7 McQuaid also found that the officer lacked reasonable suspicion. However,
as described above, the facts are distinguishable where the incident occurred
in the middle of the afternoon in that case and the officer did not see the
defendant again pulled off to the side of the road in the parking lot of a closed
business.
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behind the wheel only approximately ten minutes before, would have pulled
over to sit in his vehicle about one mile away in the parking lot of a closed
grocery store, as this could signal possible health issues. While Ramey did
start to drive away after the troopers’ approach, under the totality of the
circumstances, it was reasonable for Trooper Shoeman to investigate whether
it was safe for Ramey to continue his drive.
Accordingly, based on the foregoing, we conclude that McQuaid, even
if it were binding precedent, it is not persuasive because it is distinguishable,
and the facts support the court’s denial of Ramey’s motion to suppress where
Trooper Shoeman was acting in his role as a public servant and pursuant to
his role as a community caretaker. Bell, 871 A.2d 267, 271.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/09/2021
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