Com. v. Sullivan, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDREW LYNN SULLIVAN, :
:
Appellant : No. 256 WDA 2019
Appeal from the Order Entered July 13, 2018
in the Court of Common Pleas of Somerset County
Criminal Division at No(s): CP-56-CR-0000114-2018
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 05, 2019
Andrew Sullivan (“Sullivan”) appeals from the judgment of sentence
imposed following his convictions of two counts of driving under the influence
(“DUI”), and one count each of restrictions on alcoholic beverages and
resisting arrest.1 We affirm.
On November 5, 2017, Pennsylvania State Trooper Jeremy Lischak
(“Trooper Lischak”) and Department of Conservation and Natural Resources
(“DCNR”) Officers Joshua McVay (“Officer McVay”) and Shane Stinedurf
(“Officer Stinedurf”) (collectively, “the officers”) were on patrol, parked on
Olde Road at its intersection with Route 31, in Somerset County, Pennsylvania.
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1 See 75 Pa.C.S.A. §§ 3802(a)(1), 3802(c), 3809(a); 18 Pa.C.S.A. § 5104.
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Each officer was in uniform and driving a separate marked law enforcement
vehicle.2
At around 9:30 p.m., Sullivan approached the officers in his vehicle on
State Route 31, drove onto the driveway of a house located near where the
officers were positioned, and proceeded into a grassy area next to the
driveway. Sullivan’s vehicle stopped in the grassy area, facing the officers, at
a distance of approximately 20 yards, with its headlights on. Sullivan left the
vehicle’s engine running, and flashed its high-beams at the officers.
Officer McVay approached Sullivan’s vehicle on foot to inquire as to
Sullivan’s intentions. When Officer McVay was approximately 10 yards away
from the vehicle, Sullivan yelled out his vehicle’s window for the officers to
“get the fuck off of his property.” Officer McVay continued walking towards
Sullivan’s vehicle, and advised Sullivan that the officers were not on his
property, and that they were parked on a public road. Sullivan told Officer
McVay that he did not care, and he wanted them to get off of his property.
When Officer McVay reached Sullivan’s driver-side window, he observed two
cans of beer in Sullivan’s center console, one open and approximately half-
full, and one closed. Officer McVay also noticed a strong odor of alcohol
emitting from Sullivan. Officer McVay asked Sullivan to turn off his vehicle’s
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2 Trooper Lischak was operating a Pennsylvania State Police vehicle. Officers
McVay and Stinedurf were operating DCNR vehicles. All three vehicles
featured light-reflective markings.
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engine and hand him the beer cans, after which he requested Officer Stinedurf
and Trooper Lischak to assist him. Officer McVay then asked Sullivan to step
out of his vehicle, and Sullivan complied.
When Trooper Lischak arrived at Sullivan’s vehicle, he noticed that
Sullivan was emitting an odor of alcohol and had slurred speech. Trooper
Lischak advised Sullivan that he was under investigation for DUI, and
requested that he submit to a field sobriety test. Sullivan refused, and told
the officers that he was on his own property. Trooper Lischak then advised
Sullivan that he was under arrest for DUI, and attempted to handcuff him.
Sullivan resisted by pulling his arms away from Trooper Lischak’s grasp.
Trooper Lischak was unable to handcuff Sullivan until Officers McVay and
Stinedurf assisted in restraining Sullivan. Once handcuffed, Sullivan was
transported to a hospital for a blood draw.3 Sullivan was arrested and charged
with the above-mentioned offenses.
Sullivan filed an Omnibus Pre-Trial Motion to suppress, challenging the
officers’ contact with Sullivan as an illegal search and seizure, which the trial
court denied. Sullivan filed a Motion for Reconsideration, which the trial court
denied. At the conclusion of trial, Sullivan made a Motion for Judgment of
Acquittal on the resisting arrest charge and the two DUI charges, which the
trial court denied. Following trial, the jury found Sullivan guilty of DUI –
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3 The blood test result showed that Sullivan had a blood alcohol content of
.31%.
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general impairment, DUI – highest rate of alcohol, and resisting arrest; the
trial court found Sullivan guilty of restriction on alcoholic beverages. The trial
court sentenced Sullivan to an aggregate term of one to five years in prison.
Sullivan filed a timely Notice of Appeal and a Pa.R.A.P. 1925(b) Concise
Statement of errors complained of on appeal.
On appeal, Sullivan raises the following questions for our review:
Whether the present matter should be reversed and remanded
because the [trial court] erred in:
a. Failing to suppress evidence seized by officers after entering
[Sullivan’s] private property[?];
b. Failing to permit [Sullivan] to establish facts regarding the
[o]fficers’ illegal entry onto [Sullivan’s] private property[,]
after explicitly being instructed to exit the premises[?];
c. Denying [Sullivan’s] Motion for Judgment of Acquittal on his
conviction of resisting arrest[?]
d. Finding sufficient evidence to convict [Sullivan] of resisting
arrest[?]; and
e. Finding sufficient evidence to convict [Sullivan] of restriction
on alcoholic beverages[?]
Brief for Appellant at 7.4
In his first claim, Sullivan alleges that the trial court erred in denying
his Omnibus Pretrial Motion to suppress. Id. at 14-26. Sullivan argues that
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4 The Argument section of Sullivan’s brief combines his third and fourth claims
together under Roman numeral “III”. Accordingly, we will refer to them jointly
as his “third claim.” We will refer to his final claim, regarding the sufficiency
of evidence on his restriction on alcoholic beverages charge, as his “fourth
claim.”
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the officers violated his rights against unreasonable searches and seizures,
set forth in the Fourth Amendment of the U.S. Constitution, and Article 1,
Section 8 of the Pennsylvania Constitution. Id. at 14-18. According to
Sullivan, the officers conducted a search on his property, and seized him,
without a warrant, probable cause, or reasonable suspicion that a crime had
taken place. Id. at 18-26. Sullivan claims that the officers conducted an
unlawful search when they entered his property, and an unlawful seizure when
they reached his vehicle. Id.
The standard of review for the denial of a motion to suppress
evidence is as follows: We may consider only the
Commonwealth’s evidence 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 trial court, we are bound by those facts and may
reverse only if the legal conclusions drawn therefrom are in error.
An appellate court, of course, is not bound by the suppression
court’s conclusions of law.
Commonwealth v. Hampton, 204 A.3d 452, 456 (Pa. Super. 2019).
[I]t is hornbook law that the Fourth Amendment to the
United States Constitution[,] as well as Article I, § 8 of the
Pennsylvania Constitution[,] protect citizens from unreasonable
searches and seizures. Warrantless searches and seizures … are
unreasonable per se, unless conducted pursuant to specifically
established and well-delineated exceptions to the warrant
requirement. Katz v. United States, 389 U.S. 347, 357 …
(1967).
Commonwealth v. Simmons, 17 A.3d 399, 402 (Pa. Super. 2011) (some
citations and quotation marks omitted; paragraph break and brackets
omitted).
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We will first determine whether Sullivan was subjected to an unlawful
search when the officers entered his property.
It is well established that absent probable cause and exigent
circumstances, warrantless searches and seizures in a private
home violate both the Fourth Amendment and Article 1, Section 8
of the Pennsylvania Constitution. Our courts have extended this
constitutional protection to the curtilage of a person’s home by
analyzing factors that determine whether an individual reasonably
may expect that an area immediately adjacent to the home will
remain private. Curtilage is entitled to constitutional protection
from unreasonable searches and seizures as a place where the
occupants have a reasonable expectation of privacy that society
is prepared to accept.
Commonwealth v. Simmen, 58 A.3d 811, 815 (Pa. Super. 2012) (citations,
quotation marks and brackets omitted).
In Simmen, police were called to the scene of a hit-and-run motor
vehicle accident. See Simmen, 58 A.3d at 813. Officer Christian Guzzo
(“Officer Guzzo”) responded to the scene, and observed a vehicle’s bumper
laying on the ground, a series of tire tracks, and a trail of vehicle fluid leaving
the scene of the accident. Id. Officer Guzzo followed the trail of fluid to a
home approximately 1.5 to 2 miles away, which had a vehicle sitting in the
driveway that matched the hit-and-run vehicle’s description. Id. With the
hopes of contacting the homeowner, Officer Guzzo approached the home’s
front door, when he noticed that the vehicle was missing a bumper, which
matched the bumper found at the scene, the vehicle was leaking fluid, and
the vehicle’s driver-side airbag had been deployed. Id. Officer Guzzo was
standing on the home’s driveway when he made these observations. Officer
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Guzzo subsequently made contact with the driver of the vehicle, Richard
Simmen, and determined that he had been driving under the influence. Id.
at 813-14.
Prior to a non-jury trial, Simmen filed a motion to suppress the evidence
discovered by Officer Guzzo when he walked onto Simmen’s driveway. Id. at
814. The trial court denied the motion. Id. On appeal, this Court found that
the trial court’s holding was supported by the evidence. Id. at 815. We
reasoned that the driveway was not curtilage in which Simmen had a
reasonable expectation of privacy, based on a number of factors:
Based on the description of the driveway, and the location of the
car on it, there was no evidence presented at the time of the
suppression hearing to support an assertion that there was any
expectation of privacy in the area. The driveway was in the front
of the house, leading from the street to the garage contained
within the actual residence. The car was parked in plain view of
the street on the driveway, within twenty (20) feet of the road.
There was no evidence of signs warning against trespass on the
driveway or that the driveway was gated or fenced or shielded
from the view of the street in any way. In fact, it appears from
the description of the house that access to the front door of the
residence was made via the driveway. These facts certainly
suggest that there could be no reasonable expectation of privacy
in the area of the driveway.
Id. at 815-16.
Similarly, in the case sub judice, the record reflects that the grassy area
on which Sullivan stopped his car (1) bordered and was within plain view of
Pennsylvania Route 31 and two cross roads, (2) contained no signs prohibiting
trespassing, (3) was not enclosed with a fence or other structure, and (4) was
used by Sullivan to park his vehicle. See N.T., 10/2/18, at 14-15, 20-21.
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Therefore, there was no evidence to support an assertion that there was a
reasonable expectation of privacy in that area. See Simmen, supra; cf.
Commonwealth v. Gibbs, 981 A.2d 274, 280 (Pa. Super. 2009) (holding
that the front porch of a defendant’s home is not protected as curtilage where
“there was no front yard or other enclosed space preceding or surrounding the
porch; rather, the porch “butt[ed] up” against the sidewalk[; t]here was no
gate blocking entry to the porch and nothing else which would indicate that
the porch was closed to members of the general public[; and f]urther, the
porch was an empty, unenclosed, concrete slab that was used by deliverymen
and visitors to the apartment.”); see also Commonwealth v. Lemanski,
529 A.2d 1085, 1091 (Pa. Super. 1987) (stating that “[i]t is now well
established that a person cannot have a reasonable or justifiable expectation
of privacy in things or activities which are generally visible from some public
vantage point.”). Accordingly, Sullivan was not subjected to an unlawful
search.
We will next determine whether Sullivan was subjected to an unlawful
seizure.
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. For this purpose,
courts in Pennsylvania have defined three types of police
interaction: a mere encounter, an investigative detention, and a
custodial detention. A mere encounter is characterized by limited
police presence, and police conduct and questions that are not
suggestive of coercion. Such encounters do not obligate the
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citizen to stop or respond and, consequently, need not be
supported by any level of suspicion. Thus, the hallmark of a mere
encounter is that the subject is free to decline to interact with the
police or to answer questions, and is also free to leave at any time.
If, however, a police presence becomes too intrusive, the
interaction must be deemed an investigative detention or seizure.
An investigative detention, by implication, carries an official
compulsion to stop and respond. Since this interaction has
elements of official compulsion it must be supported by a
reasonable and articulable suspicion that the person seized is
engaged in criminal activity and may continue only so long as is
necessary to confirm or dispel such suspicion. Finally, an arrest
or custodial detention must be supported by probable cause to
believe the person is engaged in criminal activity. …
To decide whether a seizure has occurred, a court must
consider all the circumstances surrounding the encounter to
determine whether the demeanor and conduct of the police would
have communicated to a reasonable person that he or she was
not free to decline the officer’s request or otherwise terminate the
encounter. A variety of factors may influence this determination,
including the threatening presence of several officers, the display
of a weapon by an officer, some physical touching of the person
of the citizen, or the use of language or tone of voice indicating
that compliance with the officer’s request might be compelled. As
our High Court has explained, subtle factors as the demeanor of
the police officer, the location of the confrontation, the manner of
expression used by the officer in addressing the citizen, and the
content of the interrogatories or statements must be considered.
An additional factor is whether the police officer physically
prevents the citizen from leaving. Thus, the focal point of our
inquiry must be whether, considering the circumstances
surrounding the incident, a reasonable person would have thought
he was being restrained had he been in the defendant’s shoes.
Commonwealth v. Hampton, 204 A.3d 452, 456–57 (Pa. Super. 2019)
(citations and quotation marks omitted).
In Hampton, police officer Kathleen Byrne (“Officer Byrne”) was on
patrol in a marked police vehicle, when a vehicle operated by the defendant,
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Jerome Hampton, passed in front of Officer Byrne. Id. at 454. Officer Byrne
followed Hampton, without activating her overhead lights or siren. Id.
Moments later, Hampton activated his turn signal, turned into a grassy area
on private property belonging to a church, and stopped his vehicle. Id. Officer
Byrne followed Hampton into the grassy area, and stopped her vehicle behind
Hampton, without activating her overhead lights or siren. Id. Hampton and
his female passenger exited Hampton’s vehicle, and the female passenger
approached Officer Byrne. Id. at 454-55. After requesting identification from
Hampton and the passenger, Officer Byrne learned that Hampton’s driver’s
license had been suspended for DUI-related offenses. Id. at 455. At some
point, Officer Byrne activated her spotlight, and focused it on Hampton’s
vehicle. Id. Following a brief discussion with Hampton, Officer Byrne
witnessed signs that Hampton was intoxicated, conducted a breath test, and
arrested Hampton for suspicion of driving under the influence. Id.
Following the denial of a pre-trial suppression motion, and a non-jury
trial, Hampton was found guilty of DUI. Id. On appeal, Hampton argued that
Officer Byrne’s interaction with Hampton was an investigative detention, and
not a mere encounter. Id. at 457. The Hampton Court agreed. Id. at 458.
The Court stated that “[t]he pivotal inquiry is whether, in light of the facts and
circumstances, a reasonable man, innocent of any crime, would have thought
he was being restrained had he been in the defendant’s shoes.” Id. The
Court highlighted the facts that Officer Byrne followed Hampton in her marked
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police vehicle, and parked her vehicle in such a way as to block Hampton’s
vehicle from leaving. Id.
Here, Sullivan caused the officers to investigate his actions by
approaching the officers in his vehicle with his lights on them, flashing his
vehicle’s high-beams, and then shouting at them to “get the fuck off his
property.” N.T., 7/13/18, at 14-16. Sullivan engaged the officers; the officers
did not pursue and stop Sullivan. Id. Additionally, Officer McVay approached
Sullivan’s vehicle on foot, and did not activate his vehicle’s lights, sirens or
spotlight before approaching Sullivan. Id. at 15. When Officer McVay
approached Sullivan’s vehicle, Officer McVay did not request that Sullivan
provide him with identification, or that Sullivan take any other action, prior to
observing the open beer container. Id. at 16-18. Sullivan’s vehicle was not
blocked, and he was capable of leaving the area. Id. at 14-18. Given the
totality of the circumstances, we find that the officers’ interaction with Sullivan
was a mere encounter, and did not require reasonable suspicion. See
Hampton, supra; compare Hampton, supra, with Commonwealth v.
Adams, 205 A.3d 1195, 1200 (Pa. 2019) (stating that the defendant was
“seized” when the officer prevented the defendant from exiting his vehicle, by
closing the defendant’s driver-side door after the defendant had opened it).
Accordingly, the trial court did not err in denying Sullivan’s Omnibus Pretrial
Motion to suppress.
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In his second claim, Sullivan alleges that the trial court erred by
preventing him from presenting testimony regarding the officers’ actions of
entering his property without permission. See Brief for Appellant at 26-30.
Sullivan claims that he intended to demonstrate that the officers were
trespassing on his property when they noticed the odor of alcohol and open
beer container. Id. Sullivan argues that he was prevented from establishing
the defense of an illegal arrest based on the officers’ initial trespass. Id. at
29-30.
The record reflects the following discussion at trial regarding Sullivan’s
claim:
[Defense counsel to Officer McVay]: You’re aware, however, that
if you’re told to get off property and you refuse to do so, it is a
violation of the Crimes Code of the Commonwealth of
Pennsylvania; right?
THE COURT: Counsel approach.
(SIDEBAR.)
THE COURT: You’re categorically wrong. Now, that question is
wrong. That is a misstatement of the law. Do you want to
withdraw it, or do you want me to grant - -
[Defense counsel]: No, I’ll withdraw or correct it, but if you are
advised of the - - by the owner of the property not to stay or you
had no right or privilege to be there - - maybe I didn’t state it
correctly.
THE COURT: Well, in the process of investigating an officer safety
issue. Okay. It’s that simple.
[Defense counsel]: Okay. Understood.
THE COURT: You either withdraw - -
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[Commonwealth]: Okay. Now, we need to know what you intend
to do because if you’re going to - - going to withdraw the question
--
[Defense counsel]: I’m going to withdraw the question.
(SIDEBAR CONCLUDED)
[Defense counsel]: So, strike that question, please.
N.T., 10/22/18, at 109. Sullivan’s counsel then moved on to a different line
of questioning, without attempting to re-phrase his question regarding the
alleged trespass.
Instead of disagreeing with the court, Sullivan’s counsel surmised that
“maybe I didn’t state [the law] correctly” and opted to withdraw his question.
Therefore, the trial court did not prevent him from pursuing this line of
questioning, and Sullivan has not preserved this claim for appeal. See
Commonwealth v. Tighe, 184 A.3d 560, 582 (Pa. Super. 2018) (holding
that appellant waived any right to appeal a trial court’s ruling on appellant’s
question at trial, where the appellant withdrew the question instead of
disagreeing with the court’s ruling); see also Pa.R.A.P. 302(a) (stating that
“[i]ssues not raised in the lower court are waived and cannot be raised for the
first time on appeal.”). Accordingly, this claim is waived.
In his third claim, Sullivan alleges that the trial court erred in denying
his Motion for Judgment of Acquittal on the resisting arrest charge. See Brief
for Appellant at 30-36. Sullivan claims that the Commonwealth failed to
present sufficient evidence to prove that he resisted arrest. Id. Sullivan
argues that the arrest was not lawful because (1) the officers collected the
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evidence against him while trespassing; (2) he did not intend to prevent his
arrest, because he was simply trying to close his can of chewing tobacco; and
(3) his action of pulling his wrist away from the officers cannot be considered
“means justifying or requiring substantial force.” Id. at 31-36.
“A motion for judgment of acquittal challenges the sufficiency of the
evidence to sustain a conviction on a particular charge, and is granted only in
cases in which the Commonwealth has failed to carry its burden regarding that
charge.” Commonwealth v. Emanuel, 86 A.3d 892, 894 (Pa. Super. 2014).
We apply the following standard of review when considering a challenge to the
sufficiency of the evidence:
[W]hether[,] 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 finder of fact[,] while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, or part or none of the evidence.
Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation
omitted).
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A person is guilty of resisting arrest if, “with the intent of preventing a
public servant from effecting a lawful arrest or discharging any other duty, the
person creates a substantial risk of bodily injury to the public servant or
anyone else, or employs means justifying or requiring substantial force to
overcome the resistance.” 18 Pa.C.S.A. § 5104.
Trooper Lischak testified that he advised Sullivan that he was under
arrest before attempting to handcuff him. N.T., 10/22/18, at 33. When
Trooper Lischak grabbed Sullivan’s right hand to place him in handcuffs,
Sullivan turned his body and pulled his hand from Trooper Lischak’s grip. Id.
at 33, 94. Trooper Lischak pushed Sullivan up against Sullivan’s vehicle, in
an attempt to subdue him, and advised that he would use his taser if Sullivan
did not comply. Id. at 33-34. Sullivan continued to struggle, forcing Officers
McVay and Stinedurf to assist in restraining Sullivan. Id. at 33-34, 95-96.
With the assistance of Officers McVay and Stinedurf, Trooper Lischak was able
to secure Sullivan’s arms, and attach the handcuffs to Sullivan’s wrists. Id.
Therefore, the evidence is sufficient to establish that Sullivan employed means
requiring substantial force to overcome resistance, with the intent of
preventing Trooper Lischak from placing him under arrest. See
Commonwealth v. Miller, 475 A.2d 145, 146-47 (Pa. Super. 1984) (finding
sufficient evidence to convict the defendant of resisting arrest where the
defendant “strain[ed]” his arms against police officers’ attempts to handcuff
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the defendant, and it took two officers to subdue and handcuff defendant).
Accordingly, Sullivan’s third claim fails.
In his fourth claim, Sullivan alleges that there was insufficient evidence
to convict him of restrictions on alcoholic beverages. See Brief for Appellant
at 36-38. Sullivan argues that the Commonwealth failed to prove that the
beer cans procured from his vehicle were open at the time that he was
operating his vehicle on Pennsylvania State Route 31. Id. at 37-38.
Section 3809(a) of the Vehicle Code, in relevant part, states, “an
individual who is an operator … in a motor vehicle may not be in possession
of an open alcoholic beverage container or consume … an alcoholic beverage
in a motor vehicle while the motor vehicle is located on a highway in this
Commonwealth.” 75 Pa.C.S.A. § 3809(a). Therefore, the Commonwealth was
required to prove that Sullivan (1) operated a vehicle, (2) on a Pennsylvania
highway, (3) while in possession of, or consuming, an open alcoholic
beverage. See id.
The evidence, viewed in a light most favorable to the Commonwealth,
establishes that Officer McVay witnessed Sullivan’s vehicle travel down State
Route 31. N.T., 10/22/18, at 85. Seconds later, Officer McVay approached
Sullivan’s vehicle and observed, in the center console, one open, half-empty
beer can, with perspiration on the outside of the can, and one unopened beer
can. Id. at 87-90. Officer McVay was subsequently handed the two beer cans
by Sullivan, and later discovered a third, empty, beer can behind the front
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passenger seat. Id. at 92, 97. Therefore, the evidence is sufficient to
establish that Sullivan operated his vehicle on a Pennsylvania highway while
in possession of an open alcoholic beverage. See Melvin, 103 A.3d at 39-40
(stating that “[t]he Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means of wholly
circumstantial evidence.”).
Judgment of sentence affirmed.
P.J.E. Bender joins the memorandum.
Judge Kunselman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/5/2019
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